UNIVERSITY 

OF  CALIFORNIA 

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A  TREATISE 


ON  THE  LAW  OF 


TRUSTS  AND  TRUSTEES 


BY 

JAIRUS  WARE   PERRY 


SIXTH   EDITION 

RF.VI8KD     AND     ENLARGED 

Bt   EDWIN   A.    HOWES,   Jr. 


IN  TWO   VOLUMES 

Vol.  I. 


BOSTON 

LITTLE,   BROWN,   AND    COMPANY 

1911 


Entered  according  to  Act  of  Congress,  in  tlie  years  1872,  1874. 

By  Jairus  Ware  Perry, 

In  the  Office  of  the  Librarian  of  Congress,  at  Wasliington. 

Copyrigld,  1889,  1899, 
By  Leverett  S.  Tuckkkman  and  Andrew  Fitz,  J'rustees. 

Copyright,  1882,  1S90,  1910,  1913, 
By  William  1'erry. 

V;   1 


TO  THE   HONORABLE 

HORACE    GRAY,    JR., 

OWE    OF    THE    ASSOCIATE    JUSTICES    OF    THE    SUPREME    JUDICIAL   COURT 
OF     MASSACHUSETTS, 

THIS    WOKK    IS   INSCRIBED    IN   ACKNOWLEDGMENT   OP   THE    ASSISTANCE    RECEIVED 

TTKOM    HIS    JUDICIAL    OPINIONS,    AND    FROM    HIS    PERSONAL    INTEREST 

IK    THE    PROGRESS   OK    ITS    CONSTRUCTION, 

BY    THE    AUTHOR. 


-\-bSltl- 


PREFACE 

TO     THE     SIXTH     EDITION. 


For  nearly  forty  years  Mr.  Perry's  treatise  on  the 
Law  of  Trusts  and  Trustees  has  been  used  and  referred 
to  as  an  authority  by  judges  and  lawyers,  and  has  often 
been  quoted  in  the  opinions  of  courts.  Although  during 
that  period  there  have  been  an  unusually  large  number 
of  occasions  for  new  application  of  the  principles  ex- 
pounded in  the  book,  it  has  more  than  held  its  own 
wdth  the  newer  books  on  trusts.  The  editor  of  the 
Sixth  Edition  has  felt  that  the  text  which  has  stood 
the  severe  tests  that  have  been  imposed  upon  it  ought 
not  to  be  materially  changed. 

Accordingly  the  new  citations  and  the  new  notes  of 
the  Sixth  Edition  have  been  added  to  the  book  in  such 
a  way  as  to  be  readily  distinguished  from  the  original 
text  and  notes  as  changed  by  the  previous  editions. 
Citations  of  new  cases  in  support  of  the  text  have  been 
enclosed  in  brackets  and  usually  made  part  of  the  num- 
bered notes.  The  changes  in  the  text,  or  additions 
that  have  seemed  advisable,  have  also  been  enclosed 
in  brackets.  Fortunately  these  have  been  very  few. 
Wherever  the  development  of  the  law  by  reason  of  new 
decisions  has  made  the  text  inadequate,  lettered  notes 
have  been  added. 


VI  PREFACE    TO    THE    SIXTH    EDITION. 

As  the  citations  added  by  the  editor  of  the  Fifth  Edi- 
tion were  in  the  form  of  lettered  notes,  and  as  three 
sets  of  notes  were  not  advisable,  it  has  been  necessary 
to  incorporate  the  citations  and  notes  added  by  him  into 
the  additions  made  by  the  present  editor.  This  has 
made  necessary  an  examination  of  all  the  citations  added 
in  the  Fifth  Edition.  Most  of  these  have  been  retained 
and  used  in  the  new  notes  and  other  additions.  The 
new  notes  are  therefore  based  chiefly  upon  the  decisions 
reported  since  1899,  the  date  of  the  Fifth  Edition,  and 
upon  the  citations  added  in  the  Fifth  Edition,  covering, 
altogether,  a  period  of  twenty  years.  In  some  instances 
the  editor  has  found  it  necessary  to  examine  and  cite 
decisions  of  an  earlier  period.  Every  case  cited  in 
brackets  and  in  the  lettered  notes  has  been  read  by  the 
editor,  with  the  exception  of  those  cited  in  a  lettered 
note  to  §  21  on  the  topic  of  business  combinations,  some- 
times called  trusts.  This  topic  seemed  so  far  outside 
the  scope  of  the  book  that  the  present  editor  has  not 
attempted  to  deal  with  it,  but  has  left  the  note  as  it 
appeared  in  the  Fifth  Edition. 

Citations  of  statutes  have  been  brought  down  to  date, 
and  new  ones  have  been  added  where  it  seemed  advisable 
to  do  so.  Many  cross  references  have  been  added  to 
aid  the  reader  and  to  avoid  the  unnecessary  repetition 
of  notes.  The  index  has  been  revised  and  enlarged  to 
cover  the  new  notes. 

The  book  has  been  increased  in  size   by  about  two 

hundred  pages  by  reason  of  the  additions,  and  about 

twenty-seven  hundred  new  cases  have  been  cited. 

EDWm  A.  HOWES,  Jr. 
Boston-.  July,  1910. 


PEEFACE 

TO    THE    SECOND    EDITION. 


The  rapid  absorption  of  the  first  edition  of  this  work 
into  the  hands  of  the  profession  has  not  left  to  the 
Author  so  much  time  as  could  have  been  desired  for 
the  preparation  of  a  second  edition ;  nor  could  the 
necessary  work  have  been  done  at  all,  unless  it  had 
been  constantly  in  his  hands.  Even  before  the  first 
edition  had  been  sent  forth,  work  was  done,  and  mate- 
rials accumulated,  to  improve  the  second,  if  it  should 
ever  be  called  for.  At  no  time  has  there  been  a  re- 
laxation of  thought  and  study  upon  the  subject.  The 
new  cases  have  been  assimilated  as  the  Reports  came 
along,  and  old  cases  have  been  added  as  they  fell 
under  notice  in  business  or  study.  The  Author  owes 
a  debt  of  gratitude  to  his  professional  brethren  in  every 
part  of  the  country,  for  many  valuable  criticisms,  sug- 
gestions, and  references  to  authorities.  Thirty-three 
new  sections  upon  the  trusts  that  arise  under  power  of 
sale  mortgages,  and  deeds  of  trust  in  the  nature  of 
mortgages,  have  been  added  ;  and  many  new  sections 
upon  important  questions  are  scattered  through  the 
work.     The  numbers  of  the  sections  of  the  first  edition 


Vlll  PREFACE    TO    THE    SECOND    EDITION. 

are  preserved,  that  there  may  be  no  confusion  in  the 
citations  of  the  two  editions. 

The  Author  has  been  reluctant  to  swell  the  book  into 
two  volumes,  but  it  was  found  impossible  to  compress 
the  materials  into  a  single  volume  of  a  form  and  size 
reasonably  convenient  for  use.  In  sending  forth  this 
edition  the  Author  hopes  that  it  may  do  something  to 
lighten  the  toils  of  a  laborious  profession,  and  that  it 
may  meet  with  the  same  kind  indulgence  which  was  so 
liberally  bestowed  upon  the  first. 

Salem,  Mass.,  Sept.  15, 1874. 


PREFACE 

TO    THE    FIRST    EDITION. 


An  American  book  upon  the  subject  of  Trusts  has 
long  been  needed  by  tlie  profession.  At  the  solicita- 
tion of  too  partial  friends,  the  writer  was  induced  to 
undertake  its  preparation.  The  result  is  now  given  to 
the  public. 

The  writer  of  a  law-book  would  be  inexcusable  if  he 
failed  to  use  all  the  materials  at  his  command,  which 
could  in  any  way  enable  him  to  state  and  illustrate  the 
law.  The  treatises  and  opinions  of  eminent  writers,  as 
well  as  the  reports  of  the  decisions  and  opinions  of 
judges,  must  all  be  studied  and  mastered.  And  where 
the  book  is  intended  for  the  daily  use  of  the  lawj-er  in 
busy  practice,  it  must  contain  a  notice  and  citation  of 
the  latest  cases  and  authorities.  To  this  end  all  the 
treatises  and  essays,  as  well  as  the  reported  decisions, 
upon  the  subject,  have  been  used. 

In  addition  to  the  original  opinions  of  judges  con- 
tained in  the  Reports,  the  excellent  treatise  on  the 
Law  of  Trustees,  by  Mr.  Hill,  and  the  notes  and  com- 
mentaries of  the  learned  American  editors,  have  been 
carefully  considered  upon  all  the  subjects  treated  by 
them. 

The  most  complete  work  upon  the  Law  of  Trusts  is 
the  fifth  edition  of  Mr.  Lewin's  Treatise.  This  work, 
first  printed  more  than  thirty  j-ears  ago,  has  received 


X  PREFACE    TO    THE    FmST    EDITION. 

in  its  various  editions  the  most  careful  emendations, 
corrections,  and  additions  by  its  author,  until  in  the 
last  edition  it  has  grown  into  a  remarkably  full  and 
clear  exposition  of  the  Law  of  Trusts,  as  administered 
in  England. 

It  has  been  the  constant  object  of  the  writer  to  cover 
all  the  ground  embraced  by  the  treatises  of  Mr.  Lewin 
and  Mr.  Hill,  so  far  as  the  same  is  important  to  the 
American  lawyer ;  and,  in  addition,  to  include  such 
other  subjects  and  matters,  relating  to  the  Law  of 
Trusts,  not  treated  fully  in  those  works,  as  are  useful 
and  necessary  in  American  practice. 

Perhaps  the  accumulation  of  authorities  upon  the 
many  topics  discussed  may  call  for  some  explanation. 
A  large  and  increasing  number  of  States  and  courts  are 
yearly  sending  out  a  great  number  of  volumes  of  Re- 
ports. Few  lawyers  can  have  access  to  the  whole  num- 
ber, but  all  desire  to  see  the  cases  in  their  own  State 
Reports  bearing  upon  each  proposition  of  the  text.  It 
has  therefore  been  the  aim  of  the  writer  to  cite  the 
cases  in  all  the  States,  although  the  citation  of  a  few 
leading  cases  is  always  sufficient  to  sustain  an  elemen- 
tary proposition.  He  cannot  hope  that  he  has  cited  all 
the  cases  upon  the  many  matters  treated ;  but  it  has  been 
his  purpose  to  do  so,  and  this  has  caused  an  accumula- 
tion of  cases  which  to  some  may  seem  unnecessary. 

Conscious  of  defects  in  the  execution  of  his  work,  he 
trusts  that  a  liberal  profession  will  rather  consider  how 
much  of  a  difficult  task  has  been  accomplished,  than  how 
much  has  been  omitted  or  imperfectly  done. 

The  writer  cannot  send  this  book  forth  to  the  public 
without  acknowledging  the  constant  kindness  and  en- 
couragement which  he  has  received  from  his  friends 
during  the  labor  of  its  composition ;  and  it  is  his  espe- 


PREFACE    TO    THE    FIRST    EDITION'.  XI 

cial  duty  and  i)leasure  to  acknowledge  his  obligations 
to  his  friend  and  associate  in  business  for  nearly  twenty 
years,  William  Ckowninshield  Endicott,  Esquire, 
whose  sound  learning  and  clear  judgment  have  been  a 
never-failing  resource  in  matters  of  doubt  and  difficulty, 
and  whose  refined  and  severe  taste  has  been  freely  em- 
plo^ed  in  pruning  redundancies  and  softening  asperities 
of  manner  and  style. 

Salem,  Mass.,  Nov.,  187L 


CONTENTS   OF   VOL.   L 


Paoe 

Index  to  Cases  Cited xxvii 


CHAPTER  I. 

Sections 
Introduction.  —  Origin,   History,   Definition,   and 
Division  or  Classification  of  Trusts 1-27 

§  1.    The  general  nature  of  trusts. 

§  2.     The  technical  nature  of  trusts,  and  their  origin  in  the  fidei  cam- 
missa  of  the  Roman  law. 

§  3.     The  origin  of  uses. 

§  4.     The  inconveniences  that  arose  from  the  prevalence  of  uses. 

§  5.     The  statute  of  uses. 
§§  6,  7.     The  effect  of  the  statute  of  uses,  and  the  origin  of  tnists. 
§§  8,  9,  10.     Developments  of  trusts  in  England  and  America. 

§  11.     Advantages  of  the  late  adoption  of  trusts  in  America. 

§  12.     Object  of  this  treatise. 
§§  13-17.     Definition  of  trusts. 

Classification  of  trusts. 

§  18.  Simple  and  special  trusts. 

§  19.  Ministerial  and  discretionary  trusts. 

§  20.  A  mixed  trust  and  power,  and  a  power  annexed  to  a 

trust. 

§  21.  Legal  and  illegal  trusts. 

§  22.  Pubhc  and  private  trusts. 

§  23.  Duration  of  a  private  trust  and  of  a  pubhc  trust. 

§§  24-27.  Express  trusts,  implied  trusts,  resulting  trusts,  and  con- 

structive trusts. 


CHAPTER  II. 

Parties  to  Trusts;   and  what  Property  mat  be  the 

Subject  of  a  Trust 28-72 

I.   §§  28-37.     Who  may  create  a  trust. 

§  28.  All  persons  competent  to  contract  or  make  wills  may 

create  trusts. 
§  29.  The  king  may  create  trusts. 


XIV 


CONTENTS    OF   VOL.    I. 


§  30.  The  State  may  create  trusts;  and  so  may  all  its  officers. 

§  31.  Corporations  may  create  trusts. 

§  32.  The  power  of  married  women  to  create  trusts. 

§  33.  Capacity  and  power  of  infants  to  create  trusts. 

§  34.  The  marriage  settlements  of  infants. 

§  35.  Of  the  ability  of  lunatics  to  create  trusts. 

§  36.  Of  conveyances  in  trust  by  aliens. 

§  37.  Trusts  by  bankrupts  and  insolvents. 

II.   §§  38-59.  Who  nuxy  be  a  trustee. 

§  38.  A  person  may  convert  himself  into  a  trustee. 

§  39.  Any  person  capable  of  taking  the  legal  title  may  take 
as  trustee.  Rules  that  govern  courts  in  appointing 
trustees. 

§  40.  The  sovereign  may  be  trustee.     Question  as  to  remedy. 

§  41.  The  United  States  and  the  several  States  maybe  trustees. 

§§  42—45.  Corporations  may  be  trustees. 

§  46.  Unincorporated  societies  may  be  trustees  for  charitable 

purposes. 

§  47.  Public  officers  as  trustees. 

§§  48-51.  Married  women  as  trustees. 

§§  52-54.  Infants  as  trustees. 

§  .55.  AMens  as  trustees. 

§  56.  Lunatics  as  trustees. 

§  57.  A  religious  person  or  nun  as  trustee. 

§  58.  A  bankrupt  as  trustee. 

§  59.  Cestui  que  trust  may  be  a  trustee  for  himself  and  others. 


III.   §§  60-66      Who  may  be  cestui  que  trust. 

§  60.  All  persons  may  be  cestuis  que  trust  who  may  take  the 

legal  title. 
§§  61,  62.        The  Crown  and  the  State  may  be  cestuis  que  trust. 
§  63.  Corporations  as  cestuis  que  trust. 

§  64.  Aliens  as  cestuis  que  trust. 

§  65.  Those  who  cannot  take  a  legal  interest  cannot  take  an 

equitable  interest. 
§  66.  Except  in  certain  charitable  trusts. 

rV.    §§  67-72.     What  property  may  be  the  subject  of  a  trust. 

§  67.  A   trust    may  be  created  in    everj'  kind   of    valuable 

property. 
§  68.  Possibilities,  choses  in  action,  expectancies,  and  property 

not  at  the  time  in  esse  may  be  assigned  in  trust. 
§  69.  Choses  in  action  and  expectancies  that  cannot  be  assigned 

in  trust. 
§§  71,  72.        Trusts  in  land  lying  in  a  foreign  jurisdiction,  and  their 
administration. 


CONTE>rrS    OF    VOL.    I.  XV 


CHAPTER  III. 
Express    Trusts,    and    how    Express    Trusts    are 

CREATED    AT    CoMMON    LaW,    SINCE    THE    STATUTE    OF 

Frauds,  and  in  Personal  Property,  and  herein 
OF  Voluntary  Conveyances  or  Settlements  in 
Trusts 73-111  a 

§  73.       Division  of  trusts,  according  to  the  manner  of  their  creation. 
§§  74-77.     Trusts  at  common  law. 

§  74.  At  common  law,  a  writing  not  necessary  to  convey  land. 

§  75.  Uses  might  also  be  created  without  writing,  and  so  may 

trusts,  in  States  where  the  statute  of  frauds  is  not  in  force. 
§  76.  Parol  cannot  control  a  written  trust  nor  engraft  an  express 

trust  on  an  absolute  conveyance. 
§  77.  Same  rule  as  to  trusts  created  by  parol. 

§  78.       The  statute  of  frauds,  and  its  form  in  various  States. 
§  79.  Effect  of  the  statute  upon  the  creation  of  express  trusts. 

§§  80,  81.    Effect  of  the  different  forms  of  the  words  of  the  statutes  in 

the  several  States. 
§  82.  How  express  trusts  may  be  proved  or  manifested  under  the 

statute. 
§  83.  Certainty  of  the  terms  of  the  trust,  and  the  person  by  whom 

it  is  to  be  declared. 
§§  84,  85.    Trusts  declared  or  proved  by  answers  in  chancery. 
§  86.  Trust  in  personal  property  may  be  created  by  parol. 

§§  87,  88.    Trusts  arising  from  gifts  mortis  causa  and  for  charitable  uses. 
§  89.       Statute  of  wills,  and  the  execution  of  wills. 
§  90.  Trust  cannot  be  created  in  a  will,  unless  it  is  properly  exe- 

cuted, to  pass  the  property. 
§§  91,  92.     But  might  be  manifested  by  a  recital  in  a  will  not  properly 

executed. 
§  93.  The  effect  of  the  necessity  of  probate  of  wills. 

§  94.  Parol  evidence  cannot  convert  a  bequest  in  a  will  into  a  trust. 

An  executor  is  a  trustee  of  the  surplus. 
§  95.       When  a  trust  is  completely  created. 

An  agreement  upon  a  valuable  and  legal  consideration  will 
be  carried  into  effect  as  a  trust  or  a  contract. 
§§  96-98.       If  a  complete  trust  is  carried  without  consideration,  it  will 

be  carried  into  effect. 
§  97.  But  if  anything  remains  to  be  done  to  complete  the  trust,  it 

will  not  be  carried  into  effect,  if  without  consideration. 
§  99.  Whether  or  not  a  lawful  trust  is  completely  created,  a  ques- 

tion of  fact  in  each  case. 
§  100.  Trust  for  a  stranger  without  consideration  not  completed 

without  transfer  of  the  legal  title. 


XVI  CONTENTS    OF    VOL.    I. 

§  101.  But  if  the  legal  title  cannot  be  transferred,  a  different  rule 

will  apply. 
§  102.     If   the  subject  of  the  proposed  trust  is  an  equitable  interest, 

the  legal  title  need  not  be  transferred. 
§  103.  The  instrument  of  trust  need  not  be  delivered. 

§  104.     If  once  perfected  cannot  be  destroyed,  though  voluntary. 
§  105.  Notice  not  necessary  to  trustee  or  cestui  que  trust 

§  106,  107.    Voluntary  settlements  upon  wife  and  children. 
§  108.  When  they  will  not  be  enforced. 

§  109.  Tendency  of  the  rule  in  the  United  States. 

§  110.  Marriage  a  valuable  as  well  as  meritorious  consideration. 

§  111.  Effect  of  a  seal. 

§  111  a.     New  York  statute  law. 

CHAPTER  IV. 

Implied  Trusts 112-123 

§  112.      The  manner  in  which  trusts  are  impUed,  and  the  words  from 

which  they  are  implied. 
§  113.      Words  from  which  a  trust  will  not  be  implied. 
§§  114-116.      Rules  by  which  trusts  will  or  will  not  be  impUed. 
§§  117-118.      Implied  trusts  from  directions  as  to  the  maintenance  of 

children  or  others. 
§  119.      When  trusts  for  maintenance  are  not  implied. 
§  120.      Rules  that  govern  implied  trusts. 

§  121.      Trusts  arising  by  impUcation  from  the  provisions  of  a  will. 
§  122.      Implied  trusts  arising  from  contracts. 

§  123.      A  direction  to  employ  certain  persons  does  not  raise  an  implied 
trust. 


CHAPTER   V. 
Resulting  Trusts 124-165  a 

§  124.       Creation  and  character  of  a  resulting  trust. 

§  125.       Divisions  of  this  kind  of  trust. 

§  126.  Resulting  trust  where  the  purchase-money  is  paid  by  one, 

and  deed  is  taken  to  another.     See  §  142. 

§  127.  Resulting  trust  where  trust  funds  are  used  to  purchase  prop- 

erty, and  title  is  taken  in  the  name  of  another. 

§  128.  In  what  cases  a  trust  results,  and  when  a  trust  does  not  result. 
See  §§  143,  156,  160. 

§  129.  When  a  person  uses  his  fiduciary  relation  to  obtain  an  interest 

in  or  affecting  the  trust  property. 

§  130.  Same  rules  apply  to  personal  property  unless  it  is  of  a  per- 

ishable nature. 


CONTENTS    OF    VOL,    I.  XVU 

§  131.  Where  a  resulting  trust  will  not  be  permitted  as  against  law. 

§  132.      Rules  as  to  a  resulting  trust. 
§§  133,  134.     Time  and  circumstances  in  the  creation  of  a  resulting  trust. 
§  135.      Parol  evidence  as  to  a  purchase  by  an  agent  not  admissible. 
§  136.  No  resulting  trust  in  a  joint  purchase. 

§§  137,  138.      Resulting  trusts  may  be  established  by  parol. 
§  139.  May  be  disproved  by  parol  —  the  burden  of  proof. 

§  140.  Cannot  be  changed  by  parol  after  they  arise. 

§  141.      Will  not  be  enforced  after  a  great  lapse  of  time. 
§  142.      Resulting  trusts  under  the  statutes  of  New  York  and  other  States. 
§  143.      A  resulting  trust  docs  not  arise  if  the  title  is  taken  in  the  name 

of  wife  or  child. 
§  144.  What  persons  it  embraces. 

§  145.  Doubts  and  overruled  cases. 

§  146.  When  it  will  be  presumed  to  be  an  advancement. 

§  147.  The  presumption  may  be  rebutted. 

§  148.  Is  rebutted  by  fraud  in  the  wife  or  child. 

§  149.  Creditors  may  avoid  such  advancements.     When  and  how. 

§  150.      A  resulting  trust  from  the  conveyance  of  the  legal  title  without 

the  beneficial  interest. 
§  151.  Every  case  must  depend  upon  its  particular  writing  and 

circumstances. 
§  152.  Instances  and  illustrations. 

§§  153,  154.      If  there  is  an  intention  to  benefit  the  donee,  there  is  no 

resulting  trust. 
§  155.      Gifts  to  executors  may  create  resulting  trusts. 
§  156.      Resulting  trusts  do  not  arise  upon  gifts  to  charitable  uses. 
§  157.      A  gift  upon  trust  or  to  a  trustee  and  no  trust  declared. 
§  158.      Always  a  matter  of  intention  to  be  gathered  from  the  whole 

instrument. 
§  159.  WTiere  a  special  trust  fails  it  will  result. 

§  160.  Where  a  special  trust  fails  from  illegality  or  lapses,  it  re.sults. 

§  160  a.  To  whom  it  results. 

§§  161,  162.      Whether  a  trust  results  from  a  voluntary'  conveyance  without 

consideration. 
§  163.  Equity  does  not  favor  such  conveyances;  they  may  be  void 

for  fraud,  but  no  trust  results. 
§  164.  Voluntary  conveyances  to  wife  or  child. 

§  165.      No  trust  results  from  a  fraudulent  transaction. 
§  165  a.  How  a  resulting  trust  is  executed. 

CHAPTER  VI. 

Constructive  Trusts     166-230 

§  166.      General  nature  of  constructive  trusts.     They  arise  from  fraud. 
§  167.      Jurisdiction  of  equity  over  them,  and  the  relief  given  by  convert- 
ing the  offending  party  into  a  trustee. 
VOL.  I.  —  b 


XVin  CONTENTS    OF   VOL,    I. 

§  168.      Classification  of  constructive  trusts. 

§  169.      General  definition  of  a  fraud  in  equity. 

§  170.      Principles  upon  which  equity  gives  reUef  against  fraud. 

§  171.      Actual  fraud,  or  suggestio  falsi. 

§  172.  Illustrations  of  actual  fraud. 

§  173.  The  misrepresentations  and  frauds  that  equity  will  relieve 

against. 
§  174.  The  misrepresentation  must  be  of  facts  material  to  the 

contract. 
§  175.  The  misrepresentation  must  be  of  something  peculiarly 

within  the  party's  knowledge. 
§  176.  The  relief  will  depend  upon  the  form  in  which  it  is  sought. 

§  177.      Fraud  that  arises  from  concealment,  or  suppressio  veri. 
§  178.  This  kind  of  fraud  depends  much    upon  the  relation  of  the 

parties. 
§  179.  When  a  person  may  not  be  silent. 

§  180.  Suppressio  veri  is  generally  in  law  an  affirmative  act. 

§  181.      Courts  will  relieve  where  acts  are  fraudulently  prevented  from 

being  done  —  illustrations. 
S  182.  Trust  established  where  a  party  fraudulently  prevents  a 

will  from  being  made  in  another's  favor. 
§  183.      Trust  established  in  odium  spoliatoris. 

§  184.      Trust  established  upon  a  conveyance  made  in  ignorance  or  mis- 
take. 
§  185.      But  if  the  conveyance  is  a  compromise,  courts  will  support  it  if 

possible. 
§  186.      Trust  established  when  a  deed  by  mistake  contains  more  land 

than  was  intended. 
§  187.      Misrepresentation  of  the  value  of  property  and  inadequacy  of 

consideration. 
§  188.      Catching  bargains  with  young  heirs  and  reversioners. 
§  189.      Trust  arising  from  mental  incapacity  or  imbecility  of  parties. 
§  190.  Mental  weakness  —  old  age. 

§  191.  Drunkenness. 

§  192.  Duress  —  oppression  and  distress. 

§  193.  Where  several  of  these  circumstances  are  found  combined. 

§  194.      Frauds  that  arise  by  construction  from  the  fiduciary  relations  of 

parties. 
§  195.  Between  trustee  and  cestui  que  trust. 

§  196.  Renewal  of  leases  in  his  own  name  by  trustee. 

§§  197,  198.         Contracts  prohibited  between  trustee  and  cestui  que  trust, 
but  the  cestui  que  trust  alone  can  avoid  them. 
§  199.  Rule  does  not  apply  to  dry  trustees. 

§  200.  Guardians  and  wards. 

§  201.  Parents  and  children. 

§§  202,  203.     Attorney  and  client. 
§  204.  Rule  applies  to  all  confidential  advisers. 

§  205.      Administrators  and  executors. 


CONTENTS   OF   VOL.    I.  XIZ 

§  206.      Principal  and  agent. 

§  207.  Directors  of  corporations. 

§  208.  Trusts  that  arise  out  of  inducements  held  out  for  marriage. 

§  209.      Other  fiduciary  relations. 

§  210.  Undefined  fiduciary  and  friendly  relations. 

§  211.  Trusts  arising  from  the  frauds  of  third  persons. 

§  212.  Frauds  upon  third  persons  as  creditors,  etc. 

§  213.  Conveyances  by  man  or  woman  on  the  point  of  marriage. 

§  214.  Illegal  and  immoral  contracts. 

§  215.  Fraud  by  pretending  to  buy  for  another. 

§  216.      Devises  or  conveyances  upon  secret  illegal  trusts. 

§  217.      Purchases  from  trustees  with  knowledge  of  the  trusts. 

§  218.  Purchases  without  notice  of  the  trust. 

§  219.  The  safeguards  thrown  around  such  purchases. 

§  220.  The  consideration  in  such  cases. 

§  221.  The  consideration  must  have  been  actually  paid. 

§  222.  Notice  of  the  trust  —  to  whom  it  may  be. 

§  223.  Notice  may  be  actual  or  constructive. 

§  224.  Purchase  of  property  from  executors  or  administrators  — 

real  estate. 
§  225.  Personal  property. 

§  226.      Constructive  trusts  may  be  proved  by  parol  —  statute  of  frauds 

does  not  apply. 
§  227.     The  right  to  set  aside  a  conveyance  for  fraud  is  an  equitable 

estate  that  may  be  conveyed  and  devised. 
§§  228-230.      Statute  of  frauds  and  the  time  within  which  steps  must  be 
taken  to  avoid  a  fraudulent  conveyance. 

CHAPTER  VII. 

Trusts  that  arise  by  Equitable  Construction  in 
THE  Absence  of  Fraud      231-247  a 

§  231.      Trust  by  equitable  construction.     Illustration. 

§  232.      Vendor's  lien  for  the  purchase-money  of  this  description.     States 

in  which  it  exists. 
§  233.  This  lien  does  not  contravene  the  statute  of  frauds. 

§  234.  The  nature  of  the  interest  of  the  vendor  under  this  lien. 

§§  235-237.      When  the  lien  exists  and  when  not. 
§§  238-239.      The  parties  between  whom  the  lien  exists. 
§  240.      Trust  by  construction  where  a  conveyance  is  made  that  cannot 

operate  at  law. 
§  241.      Constructive  trust  where  trust  property  is  transferred  by  gift 

from  the  trustee. 
§  242.      Constructive  trust  where  a  corporation  distributes  its  capital 

stock  without  paying  its  debts. 
§  243.     A  person  holding  the  legal  title  as  security  is  a  constructive 

trustee. 


XX  CONTENTS    OF   VOL.    I. 

§  244.      E.xecutor  indebted  to  the  testator's  estate  is  a  constructive  trustee. 
§  245.      A  person  may  become  a  trustee  de  son  tort  by  construction. 
§  246.      An  agent  may  become  a  constructive  trustee. 
§  246  a.  Other  equitable  trusts.     See  §  247  a. 

§  247.      A  person  holding  deeds  or  papers  or  property  belonging  to  an- 
other may  be  a  constructive  trustee. 


CHAPTER  VIII. 

Trusts  that  arise  by  Construction  from  Powers     248-258 

§  248.  The  nature  of  powers  that  imply  a  trust. 

§  249.  Court  will  execute  such  powers  as  trusts. 

§§  250,  251.     Instances  of  powers  which  the  court  will  execute  as  trusts. 
§  252.  Instances  of  powers  that  are  not  trusts. 

§  253.  Where  the  power  is  too  uncertain. 

§  254.  The  power  must  be  executed  as  given  or  it  will  remain  a 

trust  to  be  executed  by  the  court. 
§§  255,  256.     In  what  manner  the  court  will  execute  a  trust  arising  out  of 

a  power. 
§  257.  Whether  courts  will  distribute  per  stirpes  or  per  capita. 

§  258.  And  whether  to  those  Uving  at  the  death  of  donor  or  of  the 

donee. 

CHAPTER  IX. 

Appointment,  Acceptance,  Disclaimer,  Removal, 
Resignation,  Substitution,  and  Number  of  Trus- 
tees, AND  Appointment  under  a  Power 259-297 

§  259.      Acceptance  of  the  trust  —  how  and  when  it  should  be  accepted. 

§  260.  What  is  an  acceptance,  and  its  effect. 

§  261.  How  an  acceptance  may  be  shown. 

§  261  a.      Trustee's  bond. 
§§  262,  263.     Where  an  executor  is  also  named  as  trustee. 

§  264.      Of  the  executor  of  an  executor,  or  the  executor  of  a  trustee. 

§  265.      Trustee  de  son  tort. 

§  266.      No  such  thing  as  a  passive  trustee. 

§  267.      Disclaimer  by  trustee. 

§  268.  Cannot  disclaim  after  acceptance. 

§  269.  Whether  an  heir  can  disclaim  after  the  death  of  the  trustee. 

§§  270,  271.     Parol  disclaimer  sufficient,  but  a  writing  more  certain. 

§  272.  Where  a  legacy  or  other  benefit  is  given  to  the  trustee  or 

executor. 

§  273.  Effect  of  a  disclaimer. 

Removal  or  resignation. 

§  274.  How  a  trustee  may  be  removed  or  resign. 


CONTENTS    OF   VOL.    I.  XXI 

§  275.  For  what  causes  may  be  removed. 

§  276.  For  what  causes  may  be  allowed  to  resign. 

§  276  a.  A  trust  shall  not  fail  for  lack  of  a  trustee.     See  §  731. 

§§  277,  278.     How  the  court  proceeds  in  substituting  trustees. 

§  279.  Bankruptcy  of  trustees. 

§  280.  The  resignation  of  trustees. 

§  281.  Where  the  same  person  is  executor  and  trustee. 

§  282.  The  proceedings  to  remove  and  substitute  trustees. 

§  283.  Where  all  parties  consent. 

§  284.  Of  the  vesting  of  the  property  in  the  new  trustees. 

§  285.  Duty  of  trustee  where  all  consent  to  his  discharge. 

§  286.      Of  the  number  of  trustees. 

Appointment  of  trustees  under  a  power. 

§  287.  Tru.stees  cannot  appoint  their  successors  or  new  trustees 

unless  power  is  given  in  the  instrument  of  trust. 

§  288.  Caution  necessary  in  new  appointments. 

§  289.  Powers  of  appointment  frequently  matters  of  personal  con- 

fidence. 

§  290.  Occasions  or  events  upon  which  new  appointments  may  be 

made. 

§  291.  An  appointment  may  be  made  to  fill  a  vacancy  occurring 

before  the  death  of  the  testator. 

§  292.  Unfitness  and  incapacitj'. 

§  293.  Power  cannot  be  exercised  if  the  trust  is  already  in  suit  in 

court. 

§  294.  By  whom  the  power  may  be  exercised. 

§  295.  The  power  must  be  strictly  followed. 

§  296.  Who  may  be  appointed  to  exercise  the  power. 

§  297.  Who  may  be  appointed  under  a  power. 

CHAPTER  X. 

Nature,  Extent,  and  Duration  of  the  Estate  taken 

BY  Trustees 298-320 

§  298.      Where  trustees  take  and  hold  no  estate,  although  an  express  gift 

is  made  to  them.     Statute  of  uses. 
§  299.      Effect  of  the  statute  of  uses  upon  conveyancing  in  the  several 

States. 
§  300.      Effect  of  the  statute  in  the  rise  of  trusts. 
§§  301,  302.     Rules  of  construction  which  give  rise  to  trusts. 
§  303.  The  word  "seized." 

§  304.  The  primary  use  must  be  in  the  trustee  to  raise  a  trust. 

§§  305,  306.     Personal  propertj'  not  within  the  statute. 
§§  307,  308.     Where  the  statute  executes  trusts  as  uses,  and  where  it  does 
not. 
§  309.  WTiere  a  charge  upon  an  estate  will  vest  an  estate  in  trustees, 

and  where  not. 


XXU  CONTENTS   OF   VOL.    I. 

§  310.  Where  the  trust  is  for  the  sole  use  of  a  married  woman. 

§  311.  Trusts  of  personalty  are  not  executed  by  the  statute. 

§  312.      The  statute  only  executes  the  exact  estate  given  to  the  trustee; 
but  the  trustee  may  take  an  estate  commensurate  with  the  pur- 
poses of  the  trust  where  it  is  unexecuted  by  the  statute.     Rules. 
§§  313,  314.     Courts  may  imply  an  estate  in  the  trustee  where  none  is  given. 
§§  315,  316.     May  enlarge  the  estate  of  the  trustee  for  the  purposes  of  the 

trust. 
§  317.      Illustrations,  explanations,  and  modifications  of  the  rule. 
§§  318,  319.     Rule  in  respect  to  personal  estate. 

§  320.     Distinctions  between  deeds  and  wills  in  England  and  the  United 
States. 

CHAPTER  XI. 

Properties  and  Incidents  of  the  Legal  Estate  in 
THE  Hands  of  Trustees 321-355 

§  321.      Common-law  properties  attach  to  estates  in  trustees. 

§  322.  Dower  and  curtesy  in  trust  estates. 

§§  323,  324.  Dower  and  curtesy  in  equitable  estates  of  cestui  que  trust. 

§  325.  Forfeiture  and  escheat  of  trust  estates. 

§  326.  Trustees  must  perform  duties  of  legal  owners. 

§  327.  Forfeiture  and  escheat  of  the  equitable  estates  of  cestui  que 
trust. 

§  328.  Suits  concerning  legal  title  must  be  in  name  of  trustee. 

§  329.  Who  has  possession  and  control  of  trust  estates. 

§§  330,  331.  Who  has  possession  of  personal  estate.     Rights  and  privi- 
leges of  trustees. 

§  332.  Who  proves  debt  against  bankrupt. 

§  333.  Who  has  the  right  of  voting. 

§  334.  Trustee  may  sell  the  legal  estate. 

§  335.  May  devise  the  legal  estate.     But  see  §  341. 

§  336.  By  what  words  in  a  devise  the  trust  estate  passes. 

§  337.  Where  a  trust  estate  passes  by  a  devise,  and  where  not. 

§  338.  The  interest  of  a  mortgagee  in  fee. 

§  339.  Propriety  of  devising  a  trust  estate. 

§  340.  Whether  a  devisee  can  execute  the  trust. 

§  341.  Rule  in  New  York,  &c. 

§  342.  Where  a  testator  has  contracted  to  sell  an  estate. 

§§  343,  344,  Rights  of  the  last  surviving  trustee,  and  his  heirs  or  executors. 

§  345.  Trust  property  does  not  pass  to  bankrupt  trustee's  assignee. 

§  346.  A  disseizor  of  a  trust  estate  is  not  bound  by  the  trust. 

§§  347,  348.  Merger  of  the  equitable  and  legal  titles. 

§§  349,  350.  Presumption  of  a  conveyance  or  surrender  by  trustee  to 

cestui  que  trust. 
§§  351-353.  Where  the  presumption  will  be  made,  and  where  not. 

§  354.  Must  be  some  evidence  on  which  to  found  the  presumption. 

§  355.  Is  made  in  favor  of  an  equitable  title,  not  against  it. 


CONTENTS    OF    VOL.    I.  XXIU 

CHAPTER  XII. 
Executory  Trusts 357-376 

§§  357-359.      Nature  of  an  executory  trust.     The  rule  in  Shelley's  Case. 

§  360.      Distinction  between  marriage  articles  and  wills. 

§  361.      Construction  of  marriage  articles  and  their  correction. 

§  362.  Where  strict  settlements  will  not  be  ordered. 

§§  363,  364.     Settlement  of  personal  property. 

§  365.  Construction  of  marriage  settlements. 

§  366.      Executory  trusts  under  wills. 

§  367.  Who  may  enforce  the  execution  of  executory  trusts. 

§  368.  Inducements  for  marriage. 

§§  369,  370.     Construction  of  executory  trusts  under  wills. 

§  371.  The  words  "heirs  of  the  body"  and  "issue." 

§  372.      When  courts  will  reform  executory  trusts. 

§  373.      How  courts  will  direct  a  settlement  of  personal  chattels. 

§  374.      Whether  courts  will  order  a  settlement  in  joint-tenancy. 

§  375.     What  powers  the  court  will  order  to  be  inserted  in  a  settlement. 

§  376.     Settlement  will  be  ordered  cy  pres  the  intention. 

CHAPTER  XIII. 

Perpetuities  and  Accumulations 377-400 

§  377.     Definitions  of  a  perpetuity. 

§  378.     Executory  devises  —  springing  and  shifting  uses. 

§  379.      Growth  of  rule  against  perpetuities. 

§  380.  AppUcation  of  the  rule.     Indefinite  failure  of  issue. 

§  381.  Applies  to  the  possible  vesting  of  estates  —  not  to  the  actual. 

§  382.  Applies  equally  to  trust  and  legal  estates. 

§  383.  An  equitable  interest  that  may  not  vest  within  the  rule  is 

void.     See  §  23. 
§  384.  Distinction  between  private  trusts  and  charitable  trusts. 

§  385.  A  proper  trust  to  raise  money  to  be  applied  contrary  to  the 

rule. 
Making  estates  inalienable. 
§  386.  Equitable  estates  cannot  be  made  inalienable  in  England. 

§§  386a,  3866.      How  they  may  be  made  inalienable  in  some  of  the  United 

States. 
§  387.  Exception  in  the  case  of  married  women. 

§  388.  How  trusts  can  be  limited,  so  that  cestui  que  trust  cannot 

alienate.     See  §  815  a. 
§  389.  Limitation  of  personal  estate  to  such  tenant  in  tail  as  first 

attains  twenty-one. 
§  390.      When  courts  will  alter  trusts  and  when  not. 
§§  391,  392.     Statutes  of  various  States  in  relation  to  perpetuities. 
Accumulations. 


XXIV  CONTENTS    OF   VOL.    I. 

I  393.  Rule  respecting  trusts  for  accumulations. 

§  394.  In  England  the  rule  was  altered  by  the  Thellusson  Act. 

§  395.  Construction  of  the  Thellusson  Act. 

§  396.  Rule  against  accumulations  —  when  it  applies  and  when  not. 

§  397.  Apphcation  of  the  income  in  cases  of  illegal  directions  to 

accumulate. 

§  398.  Statutes  in  various  States  as  to  accumulations. 

§  399.  Accumulations  for  charitable  purposes. 

§  400.  Accumulations  in  cases  of  life  insurance. 


CHAPTER  XIV. 

General  Properties  and  Duties  of  the  Office  of 
Trustee 401-437  6 

§  401.     A  trustee,  having  accepted  the  office,  is  boimd  to  discharge  its 

duties. 
§  402.     He  cannot  delegate  his  authority  except  to  agents  in  proper  cases. 
§  403.  Not  responsible  if  he  follow  directions  in  employing  agents. 

§  404.  Where  agents  must  be  employed. 

§  405.  When  responsible  for  agents  and  attorneys. 

§  406.  When  not  responsible. 

§  407.  Difference  of  liability  in  law  and  equity. 

§  408.  Trustees  responsible  for  all  mischiefs  arising  from  delegating 

discretionary  powers. 
§  409.  Employing  agents  or  attorneys  may  not  be  a  delegation  of 

authority  or  discretion. 
§  410.      A  sale  or  devise  of  the  trust  estate  not  a  delegation  of  the  trust. 
§  411.      Several  trustees  constitute  but  one  collective  trustee. 
§§  412,  413.         When  they  must  all  act  and  when  not. 
§  414.      As  to  the  survivorship  of  the  office  of  trustee. 
§  415.      General  rule  as  to  liability  for  cotrustees. 
§  416.  May  make  themselves  liable,  where  otherwise  they  would 

not  be. 
§  417.  Trustees  must  use  due  diUgence  in  all  cases,  or  they  will  be 

liable  for  cotrustees. 
§  418.  Cases  of  a  want  of  due  care  and  prudence. 

§  419.  In  case  of  collusion  or  gross  neghgence,  a  trustee  will  be 

liable  for  acts  of  cotrustees. 
§  420.  When  cotrustees  are  liable  for  others  upon  sales  of  real  estate 

under  a  power. 
§  420  a.  Indemnifying  of  one  trustee  by  another. 

§  421.  As  to  liability  of  coexecutors  for  the  acts  of  each  other. 

§  422.  An  executor  must  not  enable  his  coexecutor  to  misapply 

the  funds. 
§  423.  When  executors  must  all  join  they  are  not  liable  for  each 

other's  acts;  but  they  must  use  due  diligence. 


CONTENTS   OF   VOL.    I.  XXV 

§  424.  An  executor  must  not  allow  money  to  remain  under  the 

sole  control  of  his  coexecutor. 
§  425.  Executors  and  administrators  governed  by  the  same  rules. 

§  426.  Rule  where  coexecutors  or  cotrustees  give  joint  bonds  of 

security  for  the  administration  of  the  estate. 
§  427.      Trustees  can  make  no  profit  out  of  the  office. 
§  428.  Cannot  buy  up  debts  against  the  estate  or  cestui  que  trust  at 

a  profit. 
§  429.  Cannot  make  a  profit  from  the  use  of  trust  funds  in  business^ 

trade,  or  speculation. 
§  430.  All  persons  holding  a  fiduciary  relation,  subject  to  the 

same  rule. 
§  431.  All  persons  holding  fiduciary  relations  to  an  estate, 

subject  to  the  same  rule. 
§  432.  Can  receive  no  profit  for  serving  in  their  professional  char- 

acters a  trust  estate. 
§  433.  Trustees  can  set  up  no  claim  to  the  trust  estate,  and  ought 

not  to  betray  the  title  of  the  cestui  qu£  trust. 
§  434.      In  England,  upon  failure  of  heirs  to  the  cestui  que  trust,  trustee 

may  hold  real  estate  to  his  own  use. 
§  435.      Speculative  questions. 
§  436.      In  the  United  States,  the  interest  of  the  cestui  que  trust  in  real 

estate  escheats. 
§  437.     So  it  does  in  England  and  the  United  States  in  personalty. 
§  437  a.      Contracts  of  trustee. 
§  437  6.      Signature  of  trustee. 


CHAPTER  XV. 

Possession  —  Custody  —  Conversion  —  Investment 
OF  Trust  Property,  and  Interest  that  Trustees 
MAY  be  made  to  PAY 438^72 

§  438.      Duty  of  trustee  to  reduce  the  trust  property  to  possession. 

§  439.  Time  within  which  possession  should  be  obtained. 

§  440.  Diligence  necessary  in  acquiring  possession. 

§  441.      The  care  necessary  in  the  custody  of  trust  property. 

§  442.  In  what  manner  certain  property  should  be  kept. 

§  443.  Where  the  property  may  be  deposited. 

§§  444,  445.         How  money  must  be  deposited  in  bank. 

§  446.  Within  what  time  trustee  should  wind  up  testator's  estab- 

lishment. 

§  447.  Trustee  must  not  mix  trust  property  with  his  own. 

§  448.      \Mien  a  trustee  is  to  convert  trust  property. 

§  449.  General  rule  as  to  conversion. 

§  450.  When  a  court  presumes  an  intention  that  property  is  to  be 

converted. 


XXVI  CONTENTS    OF    VOL.    I. 

§  451.  When  the  court  presumes  that  the  property  is  to  be  enjoyed 

by  cestui  que  trust  in  specie. 

§  452.      Of  investment. 

§  453.  As  to  investment  in  personal  securities. 

§  454.  As  to  the  employment  of  trust  property  in  trade,  business,  or 

speculation. 

§  455.  Rule  as  to  investments  in  England. 

§  456.  Rule  in  the  United  States. 

§§  457,  458.     Rule  as  to  real  securities. 

§  459.  Of  investments  in  the  different  States. 

§§  460,  461.     Construction,  where  the  instruments  of  trust  direct  how  in- 
vestments may  be  made. 

§  462.  Within  what  time  investments  must  be  made. 

§  463.  Trustees  must  not  mingle  their  own  money  in  investments. 

§  464.  Must  not  use  the  trust-money  in  business. 

§  465.  Original  investments  and  investments  left  by  the  testator. 

§  466.  Changing  investments. 

§  467.  Acquiescence  of  cestui  que  trust  in  improper  investments. 

§  468.      Interest  that  trustees  must  pay  upon  trust  funds  on  any  derelic- 
tion of  duty. 

§  469.  When  he  is  directed  to  invest  In  a  particular  manner. 

§  470.  When  he  improperly  changes  an  investment. 

§  471.  When  compound  interest  will  be  imposed,  and  when  other 

rules  will  be  applied. 

§  472.  Rule  where  an  accumulation  is  directed. 


INDEX  TO  CASES   CITED. 


References  are  to  sections.    All  before  473  are  in  Vol.  I.;  all  after  472  are  in  Vol.  II. 


A.  &  B.,  In  re  603 

Abbey  v.  Dewey  215 

Abbott,  Ex  parte  649 

Pet'r  282,  287,  334,  340 

V.  Amer.  Hard  Rubber  Co.        404 

V.  Baltimore  918 

V.  Bank  122 

V.  Bradstreet  891,  899,  903  a 

V.  Foote  330 

V.  Geraghty  361 

V.  Gibbs  795,  796 

V.  Massie  272 

r.  Reeves  832,  877,  884,  926 

V.  Summers  919 

Abby  V.  Dego  678 

Abeel  v.  Radcliff  83 

Abel  V.  Heathcote  769 

Abell  V.  Abell  474 

t>.  Brady  652,  918,  919 

r.  Howe  221,222 

Abend  v.  End  Fund  Commission      736 

Abercrombie  v.  Bradford  590 

Aberdeen  v.  Blaikie  206 

Abernaithy  v.  Abemaithy  275,  627 

Abney  v.  Kingsland  149 

V.  MUler  196 

Aborn  v.  Padelford  171 

Abraham  v.  Almon  112 

Abshire  v.  Carter  770 

Abston  V.  Waldon  Academy      710,  747 

Acherley  v.  Roe  872 

Acker  v.  Phoenix  97 

V.  Priest  134,  137 

Ackerman  v.  Emott  430,  456,  459, 

460,  471 

Ackland  v.  Gaisford  122 

ji.  Lutley  317 

Ackleston  v.  Heap  294 

Ackroyd  v.  Smithson  160,  499 

Acree  v.  Stone  237 

Acton  V.  White  670 

V.  Woodgate  585,  593,  596 

Adair  v.  Brimmer  422,  467 

V.  New  River  Co.  885 

v.  Shaw  217,  847,  892 

Adams,  In  re  511  c 

V.  Adams      38,  182,  259,  299,  312, 

644,  645 


ms  V.  Angell 

347 

V.  Brackett 

662,  570 

V.  Bradley 

215 

V.  Broke 

460,  778 

V.  Buckland 

414 

V.  Carey 

82,  84,  85,  140 

V.  Chaplin 

380 

V.  Claxton 

443,  914 

V.  Clifton 

402,  466, 

851,  900 

V.  Cole 

635, 

706,  714 

V.  Collier 

149 

V.  Gale 

464 

V.  Gamble 

656 

V.  Green 

231 

V.  Guerard 

299 

V.  Holden 

863 

V.  Jones 

929 

V.  Lambert 

718 

V.  Lavender 

639 

V.  Leavens 

4,38 

V.  Lopdell 

82, 

117,  119 

V.  Mackey 

661 

V.  Paynter 

274, 

287,  288 

J).  PeabodyCoalCo.  448 

V.  Perry  305,  748 

V.  St.  Leger  873,  881 

V.  Taunton  270,  273,  502,  806 

V.  University  Hospital  747 

Adams  and  Kensington  Vestry, 

In  re  112 

Adams  Female  Academy  v.  Adams 

728 
Adams's  Estate  415,  417,  418 

Adams'  Trustee  v.  Adams        310,  677, 

920 

Adamson  v.  Armitage  648 

V.    Souder  815  c 

Addams  v.  Heffernan  234 

Addis  r.  Campbell  187,  188 

Addison  v.  Bowie  612 

V.  Dawson  189 

V.  Mascall  189 

Adclman's  Will  391 

Adey  v.  Arnold  260 

Adler  v.  Sewell  328 

Adler-Goldman  Co.  v.  Phillips  586 

Adley  v.  Pletcher  144 

Adlington  v.  Cann  75,  77,  83,  88, 

90,  92,  93,  739 

Adlum  V.  Yard  690,  596 


XX  vm 


INDEX   TO    CASES    CITED. 
,/..      [Referencea  are  to  sections.] 


Adye  v.  Feuilleteau 

V.  Smith 
Affleck  V.  James 
Agar  V.  Fairfax 
Agassiz  V.  Squire 
Aggas  V.  Pickerell 
•Agnew  V.  Fetterman 
Aguilar  v.  Aguilar 
Ahearne  v.  Hogan 
Ahl's  Assigned  Estate 
Ahrend  v.  Odiorne 
Ahrens  v.  Jones 
Aiken  v.  Smith 

V.  Taylor 
Ainsley  v.  Mead 
Ainslie  v.  Medlycott 


453,  464 

729,  748 

499 

871 

511  a 

855,  862 

559 

634,  658,  659 

193,  204 

594 

232 

171,  181 

318,  353 

127,  133,  837 

680 

34,  171 


Airey  i'.  Hall  98,  100,  101,  821 

Aislabie  v.  Rice  518 

Akin  V.  Jones  60 

Alabone's  Est.,  In  re  448 

Alaniz  v.  Cassenave  181 

Albany  Exch.  Bank  v.  Brass  195,  223, 
770,  787 
Albany  Ins.  Co.  v.  Bay    655,  656,  660, 

768 

Albany's  Case  765 

Albee  v.  Wyman  672 

Albert  v.  Savings  Bank  242 

V.  Ware  14 

Albin  V.  Parmele  358 

Albro  V.  Robinson  919 

Alcock  V.  Sloper  451,  547 

V.  Sparhawk  570 

Aldborough  v.  Frye  188 

Alden  v.  Gregory  861 

V.  St.  Peter's  Parish  701,  736 

Aldersen,  Ex  parte  68 

V.  Temple  587 

Aldrich  V.  Aldrich  112 

V.  Cooper  567,  573 

Aldrich's  Will,  In  re  476  a 

Aldridge  v.  Dunn  237,  239 

V.  Westbrooke  888,  898 

Alemany  v.  Wensinger  820  a 

Alexander,  In  re  482 

V.  Alexander       112,  385,  408,  440, 

510,  511  a,  811 

V.  Brame  103 

V.  Crittenden  639 

V.  Crosbie  220 

V.  Kennedy  205 

V.  McCulloch  634 

V.  McMurray  234,  559 

V.  Mills  784 

V.  Mullins  882 

V.  Pendleton  218,  219 

V.  Saulsbury  685 

V.  Summey  456 

X.  Warrance         140,  143,  144,  324 

V.  Wellington  29,  69 

V.  Williams  863 

Aleyn  v.  Belchier  511,  511  a 

Alfred  University  v.  Hancock  710 

Alger  V.  Fay  602  h 

V.  North  End  Savings  Bank        82 

Alison  V.  Goldtree  881 

Alkire  v.  Alkire  213 

Allder  v.  Jones  253 


Allen,  Ex  parte 

189,  618 

V.  Addington 

179 

V.  Allen 

41,  75,  629 

V.  Arkenburgh 

129 

V.  Backhouse 

581,  597 

V.  Bartlett 

864 

V.  Baskerville 

312 

V.  Chambers 

84 

V.  Chatfield 

199,  602  V 

V.  Coburn 

678 

V.  Coster 

614,  615 

V.  De  Witt 

765 

V.  Gaillard 

458,  460 

V.  Gates 

223 

V.  GiUette 

195 

V.  Grant 

242 

V.  Henderson 

366,  380 

V.  Hightower 

678 

V.  Hughes 

856 

V.  Imlett 

17,  328 

V.  Jackson 

206 

V.  Knight 

218 

V.  Macpherson 

182 

V.  Maddock 

93 

V.  McGee 

117 

V.  Montgomery  Railway  757 

V.  Moore  223 

V.  Pap  worth  654 

V.  Parkham  380 

V.  Rumph  361 

V.  Russell  828 

V.  Sayer  621,  858 

V.  Stevens  729,  736,  748 

V.  Watts  448,  451 

V.  Wilkins  640 

V.  Withrow  86 

11.  Worley  863 

Aller  V.  Crouter  82,  162 

Allerton  v.  Knowell  634 

Alley  V.  Lawrence  493,  511  b,  783, 

784 
Alleyne  v.  Darcv        246,  848,  876,  907 

Allhusen  v.  Whittell  550,  551 

Ailing  V.  Ailing  613,  615,  618 

Allis  V.  Billings  35,  189 

Allis's  Estate,  In  re  452,  456,  460, 

547 

Allison  V.  Allison  183 

V.  Drake  223 

V.  Kurtz  162,  511  c 

V.  Wilson  500 

Allison's  Estate  598 

Alio  way  v.  Alio  way  248 

V.  Braine  869 

Almond  v.  Wilson  126 

Almy  V.  Jones  705 

Alsager  v.  Spaulding  212 

Alsbrook  v.  Reid  476  a 

Alsbury,  In  re  544 

Alsop  V.  Bell  908 

Alston,  In  re  547 

V.  Trollope  481 

Alsworth  V.  Cordly  131 

Altimius  v.  Elliott  915 

Alumni  v.  Theol.  Seminary  260 

Alverson  v.  .Jones  677 

Amand  v.  Bradbourne  894 

Amberson  v.  Johnson  764 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.^ 


XXIX 


Ambrose  v.  Ambrose      77,  82,  126,  137 
V.  Huntington  223 

Amor.  Acad.  v.  Harvard  College      700, 
701,  724,  748 

Am.  Bible  Soc.  v.  Am.  Tract  Soc.   730, 

733 
V.  Mar^h  748 

V.  Wetmore  748 

Am.  Bonding  Co.  v.  Mechanics' 

Bank  122 

American  Exchange  Bank  v.  In- 

loes  590 

Am.  Nat.  Bank  v.  Fidelity  Co.        860, 

861 

Amer.  Sugar  Ref.  Co.  v.  Fancher    217, 

828 

Am.    Trust  and  Banking  Co.    v. 

Boone  122 

Ames  V.  Armstrong  426 

V.  Browning  205 

V.  Downing  428,  526,  847,  910 

V.  Foster  686 

V.  Parkinson  440,  461,  469 

V.  Port  Huron  194 

V.  Scudder  471 

Ames,  Petitioner  299,  307,  309 

Amesburv'  v.  Brown  571 

Amherst  College  v.  Ritch  159,  171, 

181 
V.  Smith  790,  796 

Ammonette  v.  Black  171,  181 

Ammont  v.  New  Alexandria,  &c. 
Turnpike  Co.  757,  759 

Amory  v.  Atty.-Gen.  722,  728 

V.  Green  760 

V.  Lord  391,  396 

V.  Lowell  552,  554 

V.  Meredith  337,  511  c 

V.  Reilly  239 

Amphlett  v.  Parke  151 

Ancaster  v.  Mayer  562,  567 

Anderson,  In  re  280 

V.  Anderson   126, 142, 646, 652,  672 
V.  Austin  602  n 

V.  Baumgartner  602  n 

V.  Blood  223 

V.  Buck  815  c 

V.  Burchell  228 

V.  Burwell  229,  869 

V.  Daley  328,  330 

V.  Dawson  511  b,  655 

V.  Earle  262,  281 

V.  Foster  217,  828 

V.  Fry  863 

V.  Fuller  591 

V.  Holloman  602  i 

V.  Jones  126,  602  j 

V.  Kemper  104,  276,  485,  910 

V.  Lemon  195,  538 

V.  Mather  334,  603,  605,  610 

V.  Messinger  764 

V.  Miller  426 

V.  Neff  918 

V.  Northrop  195 

V.  Simms  921,  923 

V.  Stacher  873 

Andcrton  v.  Yates  613 

Anding  v.  Da\Tls  75,  91 


Andover  v.  Merrimack  County         642 

Andres  v.  Miller  599 

Andrew  r.  Andrew  132,  144,  547 

V.  Bible  Society  45,  402 

V.  Cooper  846 

V.  Ludlow  592 

V.  Schmitt  469 

V.  Trinity  Hall  272 

V.  Wrigley    228,  809.  810,  830,  865 

Andrews,  Ex  parte  427,  433,  487, 

863 
Re,  Edwards  v.  Dewar  671 

V.  Andrews  700,  701,  736 

I).  Atlanta  R.E.  Co.  76,82 

V.  Bank  of  Cape  Ann  117 

V.  Barnes  894 

V.  Bishop  561 

V.  Clark  154 

V.  Essex  Ins.  Co.  186 

V.  Hobson  98,  428 

V.  Jones  200,  627,  632,  642, 

645 

V.  Lincoln  3S0,  392 

V.  Partington       117,  612,  615,  620 

V.  Smithwick  864 

V.  Sparhawk        598,  795,  798,  802 

V.  Tuttle-Smith  Co.  592,  848, 

864,  877 

V.  Wilson's  Assignee  594 

Angell  V.  Angell  510,  511 

V.  Dawson  466,  476 

Angerstein  v.  Martin  461,  550,  551 

Angier  v.  Angier  672,  673 

V.  Stannard     351,  476  a,  901,  922, 

927,  928 

Angle,  Ex  parte  848,  876 

Angus  V.  Angus  72 

V.  Clifford  177 

V.  Noble  262 

Ankeney  v.  Hannon  661 

Annesley  v.  Ashurst  474 

V.  Simeon  330,  520 

Annis's  Case  693 

Anon.  116,  126,  136,  144,  157,  192,  219, 

226,  244,  255,  270,  275,  330,  402, 

415,  416,  421,  428,  431,  432,  453, 

463,  474,  511  h,  581,  596,  597,  600, 

602  q,  618,  621,  649,  663,  695,  701, 

710,  712,  725,  770,  782,  795,  796, 

810,  815,  816,  818,  819,  827,  835, 

839.  841,  903  a,  904 

Ansley  v.  Pace  820  a 

V.  Pasahro  232 

Anson,  Petitioner  276  a 

Anstice  v.  Brown  863 

Anthony  v.  Rees  805 

Antones  v.  Eslava  730,  731,  748 

Antonini  r.  Straub       48,  254,  656,  779 

Antrim  v.  Buckingham  48 

Antrobus  v.  Smith       97,  100,  103,  107, 

108,  367 
Aplyn  r.  Brewer  416,  421 

App  V.  Lutheran  Congregation  733 

Apple  V.  Allen  646 

Appleby  v.  Appleby  122,  646 

Appleton  V.  Boyd  136 

Apreece  v.  Apreece  119 

Apsey,  Ex  parte  846 


XXX 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Arbuckle  v.  Kirkpatrick 

828 

Arbuthnot  v.  Norton 

69 

Archer  v.  Hudson 

201 

V.  Moss 

182 

V.  Preston 

71 

V.  Rooke 

647, 

648. 

652 

Archibald  v.  Wright 

511  b 

Ardill  r.  Savage 

274 

Arglasse  v.  Muschamp 

71 

Arguello's  Estate 

443 

Arlin  v.  Brown 

232, 

235 

Armistead's  Ex'r  v.  Hartt 

920 

Armitage,  In  re 

544 

Armory  Board,  In  re 

484 

764, 

770 

Armour  v.  Murray 

773 

Arms  V.  Ashley 

83 

Armstrong  v.  Armstrong 

380 

V.  Barber 

381. 

383 

V.  Campbell               195,  602  v, 

863 

V.  Kerns 

48, 

254, 

656 

V.  Lane 

892, 

901 

V.  Miller 

462, 

468 

V.  Morrill 

259. 

264 

V.  Park 

500 

V.  Ross 

232 

647 

V.  Stoval 

661 

V.  Walkup 

462 

V.  Wilson 

552 

Armstrong's  Estate 

892. 

918 

Arnett's  Com.  v.  Owens 

222, 

830 

Arnold  v.  Arnold 

112 

V.  Byard 

918 

V.  Chapman 

160 

V.  Congreve 

385 

V.  Cord 

135, 

172 

V.  Garner 

431 

432 

904 

V.  Gilbert 

391. 

511 

V.  Macungie  Bank 

247  a 

V.  Ruggles 

639, 

640 

Arnony  v.  Steinbrenner 

891 

Arnot  V.  McClure 

602  z) 

Arran  v.  Tyrawley 

861 

Arrington  v.  Yarborough 

639 

Artcher  v.  MeDuffie 

843 

Arthur  v.  Arthur 

184, 

665 

V.  Coram.  Bank    31, 

688 

590, 

757 

V.  Marster 

468 

Arundel  v.  Phillpot 

248 

Asche  V.  Asche 

347 

Ash  V.  Bo  wen 

387 

652. 

670 

Ashburnham  v.  Thompson 

468, 

900 

Ashburton  v.  Ashburton 

605, 

610 

Ashby  V.  Ashby 

626, 

641 

V.  Blackwell 

929 

Ashcroft  V.  Little       647, 

648, 

649. 

651 

Ashforth,  In  re 

380 

Ashhurst  v.  Field's  Adm' 

r 

545 

Ashley,  In  re 

615 

V.  Bailey 

222 

Ashman's  Estate 

96. 

918 

Ashton  V. 

581 

V.  Ashton 

371 

515 

V.  Atlantic  Bank 

225 

800. 

814 

V.  Langdale 

61,  86 

704 

V.  McDougall 

213 

653 

V.  Thompson 

200 

V.  Wood 

340 

695 

705 

Ashton 's  Charity 

725 

Ashurst  V.  Ashurst  780 

V.  Given      66.  299,  305,  386  a,  555 

V.  Martin  592 

V.  Mill  185 

Ashurst's  App.            207.  230.  865,  866 

Ashworth  v.  Outram  666 

Askew  V.  Myrick  815  b 

Aspinall  v.  Jones  529 

Assay  «.. Hoover  336,  768 

Assets  Realization  Co.  v.  Trustees, 

&c.,  Ins.  Corp.  279 
Associate  Alumni  v.  General  Theol. 

Seminary  433,  744 

Aster  V.  Wells  222 

Astley  V.  MiUes  347 

Aston  V.  Aston  665 

V.  Galloway  576 

V.  Wood  157 

Aston's  Estate  462,  468,  918 

Trusts,  In  re  275.  280 

Astreen  v.  Flanagan  143.  144 

Asylum  v.  Lefebre      384.  386,  736,  764 

Atcherley  v.  Vernon  38,  231,  616, 

648 

Atcheson  v.  Atcheson  637,  644 

V.  Robertson  420,  894,  900 

Atchin's  Trusts,  In  re  714 

Athenteum  v.  Pooley  831 

Atherton  v.  Mo  well  634 

V.  Worth  694 

Athey  v.  Knotta  632 

Athol  V.  Derly  71 

Atkin  V.  Lord  678 

Atkins,  Re  611 

V.  Allen  545 

V.  Atkins  299 

V.  Kron  65,  64,  554 

V.  Rowe  135 

Atkinson,  In  re  82,  438 

V.  Atkinson  117,  242,  812 

V.  Jordan  592,  694 

V.  Marietta  757 

Atkinson,  Petitioner  82,  104 

Atlantic    Coast    Line    Dividend 

Cases  545 

Atteberry  v.  Burnett  231 

Atterberry  v.  McDuffee  443 

Att'y-Gen.  v.  Ailesbury  605 

V.  Alford  471 

V.  Andrew  700,  729 

V.  Andrews  478.  704 

V.  Arran  283 

V.  Aspinall  23,  31,  384 

V.  Bacchus  637 

V.  Bain  739 

V.  Baliol  Coll.  724.  725,  883 

V.  Barbour  286 

V.  Baxter  702,  718,  724 

V.  Bedford  742 

V.  Beverley  725,  745 

V.  Biddulph  737 

V.  Black  743 

V.  Blizard  698,  699,  733 

V.  Bolles  700 

V.  Boucherett  185 
V.  Boultbee         721,  724.  725,  729. 
730 

V.  Bourchette  733 


INDEX    TO    CASES    CITED. 


XXXI 


[Referencea  are  to  sections.] 


Att'y-Gen.  v.  Bovill  698,  699, 
V.  Bowyer  693,  700, 

V.  Brackenbury 

V.  Bradlee 

V.  Brandeth 

V.  Brazenose  College 

r.  Brecon 

V.  Brentwood  School 

V.  Brcrcton  694,  701, 

V.  Brettingham 

V.  Brewer's  Co.  745, 

V.  Brickdale 

V.  Briggs      700,  722,  727, 

V.  Bristol  150, 

V.  Brown  707, 

V.  Browne's  Hospital 

V.  B'lckland 

V.  Bucknall 

V.  Buller 

V.  Bunce 

V.  Burdett 

V.  Bushly 

V.  Butler 

V.  Caius  College  42, 


V.  Calvert 
V.  Carroll 
V.  Chester 
V.  Chesterfield 
v..  Christ  Church 
V.  Christ's  Hosp. 


701 


745 


p.  Clack 


282,  283, 


V.  Clapham 

V.  Clare  HaU 

V.  Clarendon  42,  209, 

V.  Clark 

V.  Clarke 

V.  Clergj'  Society 

V.  Clifont 

V.  Clifton 

V.  Cock 

V.  Columbine 

V.  Combe 

V.  Comber 

V.  Coopers'  Co. 

V.  Cordwainera'  Co. 

V.  Coventry 

V.  Cowper 

V.  Craven  704 

V.  Crook 

V.  Cullum 

V.  Cuming  278,  413, 


V.  Dallgars 

■B.  Dangers 

V.  Daugous 

V.  Dedham  School 

V.  Dixie 

T.  Dixon 

V.  Dodd 

V.  Downing 


T.  Doyley 

V.  Drapers'  Co. 

V.  Drummond 


38,  248, 
701 

271,  273 
725 
275 


725,  733 

730,  736, 

739.  818 

511  c 

715 

698,  733 
745 
478 

694,  695 
732, 746 

737 
863,  871, 
900,  901 

412 
728,  729 

725,  745 

726,  879 
742 
255 

699,  746 
336,  337 

733 
739 
704 

732,  747 

276,  900, 

901 

733 

724 

736,  741 
907 
725 

865,  900 

293,  474, 

508 

733 

743 

742,  743 

732,  742 

698,  699 
734,  748 

278 
733 
701,  702 
724 
730 

699,  712 
276,  725 

725 

745 

278 

,  724,  725 

742 

696,  747 

414,  490, 

888,  894 

848 

903 

278 

742,  743 

725,  742 

441 

448 

249,  694, 

,  730,  736 

,  715,  721 

,  900,  901 

,  733,  901 


Att'y-Gen.  v.  Dublin  694,  724 

V.  Dudley  195,  230 

V.  Duley  867 

V.  Dulwich  College  742 

V.  Dyson  283 

V.  Eastlake  478,  707 

V.  East  Retford  844,  900 

V.  Evart  Booming  Co.  732 

V.  Exeter    698,  733,  745,  855.  863, 

869 
V.  Federal  St.  Meeting-House  710, 
712,  732,  734,  745,  860,  864 
V.  Fishmongers'  Co.    718,  725,  745 
V.  Fletcher  721,  724,  729 

V.  Floyer  295,  414,  490 


23,  384 
746 
42,  742, 
816 
725,  746 
732,  734,  748 
725 
742 
477 
724 
380,  736 
701,  702,  721,  731 


V.  Forster 

V.  Foster 

V.  Foundling  Hospital 

V.  Gal  way 
V.  Garrtson 
V.  Gascoigne 
V.  Gaunt 
V.  Geary 
V.  Gibson 
D.Gill 

V.  Gladstone 

V.  Glasgow  College     724,  725,  733 
V.  Gleg  19,  408,  414,  699,  721, 

733 
V.  Glyn  724,  725,  729 

V.  Goldsmiths'  Co.  733 

V.  Goodell  722,  729 

V.  Gould  733 

V.  Goulding  725,  729 

V.  Green  724,  730 

V.  Greenhill  383 

V.  Greenhouse  847 

V.  Grocers'  Co.  746,  747 

V.  Guardians  of  Poor  478 

V.  Guise  724,  725,  729 

V.  Haberdashers'  Co.  119,  156. 

710,  712,  725,  746 

113,  116,  736 
769 

735,  746,  747 

23,  384,  704,  707,  885 

732 


V.  Hall 

V.  Hamilton 

V.  Hartley 

V.  Heelis 

V.  Heiuer 

V.  Herrick 

V.  Hewer 

V.  Hickman 

V.  Hicks 

V.  Higham 

V.  Hobart 

V.  Holland 

V.  Hotham 

V.  Hungerford 

V.  Hurst 

V.  Hutton 

V.  Ironmongers'  Co 


V.  Jackson 
V.  Jeanes 
V.  Johnson 
V.  Jolly 

V.  Kell 
V.  Kerr 


729 

710 

249,  701,  702 

724,  725 

440 

900 

419 

699 

737 

726,  903  a 

734 

42,  699.  723. 

724.  725.  729 

710,  729,  746 

732,  746 

699 

701,  724,  726,  728,  730, 

731.  748 

692,  733,  747 

737 


XXXll 


INDEX   TO    CASES    CITED. 
[References  are  to  sectiona.] 


Att'y-Gen.  v.  Landerfield_ 
V.  Lawes 


42 

701,  702,  724,  725, 

903  a 

,  Leeds  325 

.  Leicester  246,  846,  907 

,  Lepine  741 

,  Litchfield  295,  414,  490 

,  Liverpool  816 

.  Llandafif  725 

,  Locke  414,  694,  742 

.  London  276,  282,  701,  724,  725, 

729,  741,  894 

Londsdale  700,  704 

Magdalen  College  742,  800 

Manners  480 

Mansfield  696,  733,  735 

Marchant  725 

Margaret  &  Regius  Prof. 

Cambridge  700,  733 

Master  of  Catharine  Hall     725, 
742,  745 
Mathews  699,  719,  729 

Mercers'  Co.  747 

Merchant  Tailors'  Co.  747 

Merrimack  Manuf.  Co.  732 

Middleton      694,  724,  732,  742, 
746 
Minshull  724,  725 

Monro      432,  734,  745,  747,  863 
Moor's  Ex'rs  747 

Moore  476  a,  694,  733,  742,  748 
866,  928 
Moseley 
Murdoch 
Newark 
Newbury  Corp. 
Newcombe 
Newman 
Northumberland 
Norwich 
Oakaver 
Oglander 


V.  Old  South  Society 


511 

733,  734 

737 

875 

23,  384 

695,  724 

699 

478,  890,  910,  915 
701 
729,  730,  746 


Owen 

Oxford 

Painters'  Co. 

Parker 

Parnther 

Payne 

Peacock 

Pearce 

Pearson 


699,  743, 
745,  748 

484 
724,  726 

699 


701,  732,  742,  746 
189,  190,  665 
745 
699 
699,  720 
275,  290,  702,  733, 
734,  746,  915 
Pitter  451 

Piatt  693,  730,  733 

Poulden  151,  395,  397 

Power  718,  726 

Price  256,  698,  699 

Pyle  724 

Ranee  699,  729 

Randell  416,  417, 

443 
Ref.  Prot.  Dutch  Church  745 
Rochester  425,  733,  734,  745 
Ruper  701 

Rye  739 

St.  Cross  Hospital  742 


Att'y-Gen.  v.  St.  John's  Hospital      42, 

745 
V.  Sands  3,  64,  327,  434 

V.  Scott  19,  301,  304,  323,  408, 

409,  413,  490,  745 


V.  Shearman 

V.  Sherborne  School 

V.  Shore 

V.  Shrewsbury 

V.  Skinners'  Co. 

V.  Smart 

V.  SoUy 

V.  Sothen 

V.  South  Molton 

n.  Speed 

V.  Stafford 

V.  Stamford 

V.  Stephens 

V.  Stepney 

V.  Sturge 

V.  Syderfin 

V.  Tancred 

V.  Todd 

V.  Townsend 

V.  Trinity  Church 

V.  Utica  Ins.  Co. 

V.  Vigor 

V.  Vint 

V.  Vi\aan 

V.  Wallace 

V.  Wansay 

V.  Warren 

V.  Warrick 


413 
733 
275,  287.  733 
23,  384,  707 
694,  725,  745 
732,  746 
468 
192 
725 
699 
42 
278,  748 
249,  282,  283 
701 
741 
719,  724,  729 
694 
718 
694 
699,  725,  746 
42 
511  c 
699,  718,  724,  729 
701,  733,  746,  747 
694,  701,  728,  748 
730 
737,  746 
724 
725,  744 
160 
42,  700,  729,  732 
709,  724 
732,  746 
668,  698.  699,  733 
V.  William  and  Mary  Coll.  735 
V.  Williams  700,  709 

V.  Wilson      31,  161,  848,  875,  879, 

900 


V.  Wax  Chandlers'  Co. 

V.  Weymouth 

V.  Wharwood 

V.  Whitechurch 

V.  Whiteley 

V.  Wilkinson 


V.  Winchelsea 

V.  Windsor 

v.  Winsor 

V.  Wisbert 

V.  Wyville 

V.  York 
Attwill  V.  Dole 
Atwater  v.  Perkins 

V.  Russell 
Atwaters  v.  Burt 
Atwood  V.  Small 

V.  Vincent 
Aubrey  v.  Brown 

V.  Middleton 
Aubuchon  v.  Bender 

V.  IjOTy 
Auby  v.  Doyl 
Auer  V.  Brown 
Augusta  V.  Walton 
Ault  V.  Hillyard 
Austin  V.  Au.stiu 

V.  Bank  of  England 

V.  Bell 

V.  Brown 

V.  Halsey 


287 

157,  745 

725 

725 

888 

742 

262,  328 

774 

83,  86,  95 

784 

171 

232 

636 

570 

104 

414 

121 

252 

277 

358 

275,  649 

242 

591,  592,  593 

64,  131,  140 

569 


Austin  V.  Hatch 

800 

V.  Johnson 

691 

V.  Martin 

273,  804 

V.  Muuro 

526 

V.  Shaw 

411 

V.  Southern  Home  Asa'n  223 

V.  Taylor  298.  357,  359,  372 

V.  Wilcoxson  86 

V.  Wilson  810 

Australian,  &c.  Co.  v.  Mounsey  486, 754 

Aveline  v.  Melhuish  851 

Aveling  v.  Knipe  133,  136 

Averett  v.  Lipscombe  655 

Averill  v.  Loucks  590,  602# 

Avery  v.  Avery  271,  428 

V.  Griffin  48 

V.  Monroe  692,  593,  602 

V.  Osborne  900 

V.  Stewart  206 

V.  Tyringham  734 

Avison  V.  Holmes  388 

Awdley  v.  Awdley  611 

Ayeenena  v.  Peries  843 

Aydelott  v.  Breeding  469,  900,  910 

Ayer  v.  Ayer  310,  575 

V.  Bangor  43 

Aylesford  v.  Morris  186 

Ayliffe  v.  Murray  195,  347,  904 

Ayls worth  v.  Whitcomb  104 

Aylward  v.  Kearne  200,  230 

V.  Lewis  279 

Aymar  v.  Roff  603 

Aynsworth  v.  Pratchett  615 

Ayres  v.  Methodist  Church         45,  748 

V.  Ward  270 


B. 

Baal  V.  Morgher  647 

Babb  V.  Reed  705,  710 

Babbitt  v.  Babbitt  117,  248,  275 

V.  Fidelity  Tr.  Co.  465,  918, 

919 

Babcock,  Matter  of  554 

Babcock  v.  Case  179 

V.  Hubbard  426 

V.  Maxwell  596 

Baber,  Be  593 

Bach  V.  Kidansky  232 

Back  V.  Andrew  144,  146 

V.  Gooch  587 

Backhouse  v.  Middleton  581,  828 

Bacon  v.  Bacon  404,  409,  417 

V.  Bronson  173 

I'.  Dcvinney  144 

V.  Mclntire  856 

V.  Proctor  380,  396 

V.  Rives  863 

V.  Taylor  299 

Bacon's  App.  304,  311,  359 

Bacon's  Estate  150 

Bacon's  Will,  In  re  327 

Bacot  )'.  Hayward  440,  481 

Baddam,  Ex  parte  555 

Badger  v.  Badger  861,  869 

Badham  v.  Mee  15,  118,  784 

Baegle  v.  Wentz  171,  172,  215 

VOL.  I.  —  c 


INDEX   TO    CASES   CITED. 
IReferencea  are  to  sections.] 

Baer's  Appeal 
Bagenai  v.  Bage 
Baggett  V.  Meux 
Baggot  V.  Baggot 
Bagley  v.  Kennedy 
Bagot,  In  re 
V.  Bagot 
haw  V.  Newton 


XXXlll 


443,  453 
684 
647 
900 
866 
329 
276 
903a 


V.  Spencer  306,  316,  358,  359,  366, 

371 

y.  Winter 
Bahin  v.  Hughes 
Bailey  v.  .^tna  Ina.  Co 

V.  Bailey 


V.  Brown 
V.  Calfee 
V.  Colton 
V.  Dillon 
V.  Dobbins 
V.  Ekins 
V.  El  kins 
V.  Gould 
V.  Harris 
V.  Hemenway 
I).  Inglee 
V.  Irwin 
V.  Jackson 
V.  Lloyd 
V.  Merritt 
V.  Pearson 
V.  Robinson 
V.  Selden 
V.  StUes 
V.  Watkins 
V.  Wilson 
V.  Winn 
V.  Worster 
V.  Young 

Bailey,  Petitioner 

Bain  v.  Buff 
V.  Lescher 


636,  645 

420  a,  609 

199,  602  hb 

93,  245,  289 

600 

866 

816  c 

672 

144,  147 

260 

802 

898,  902 

75 

132 

838,  877 

86 

654,  658 

511c 

602  Jf 

661,  675,  680 

205,  602  V 

328,  886 

183 

206,  209 

217 

217 

262,  386  a,  476  a,  928 

440 

502 

117,  119,  661 

648 


Bainbridge  v.  Ashbuiton  337 

V.  Blair       275,  279,  282,  432,  818, 
820,  885,  895,  904 


Bainbrigge  v.  Browne 
Baines  v.  Dixon 

V.  McGee 
Baird  v.  Hall 
Baird's  Appeal 
Baker,  In  re 

V.  Barney 

V.  Bartictt 

V.  Biddle 

II.  Bliss 

V.  Bradley 

V.  Brown 

V.  Carter 

V.  Crookshank 

V.  Dishrow 

V.  Dumaresque 

V.  Dutton 

ji.  Evans 

V.  Fleming 

V.  Fooks 

V.  Foster 

V.  Gregory 

V.  Hall 

V.  Hathaway 


201 
581 

205,  225 
456 
344 
468 
672 
223 

843,  855 

225,  814 

201,  670 
815  a,  864 

849,  900 
598 

466.  843 

72 

701 

98 

232 

550,  575 
202 
684 
639 
685 


XXXIV 


INDEX   TO    CASES   CITED. 
[References  are  to  sections.l 


Baker  v.  Hollabaugh  84 

V  Lane  195,  610 
V.  Leathers  143.  144,  147 
;■.  Lee  "^^o 
V.  LoriUard  610 
V.  McAden  920 
V.  Monk  1^9 
V.  Moaeley  112 
V.  Paine  226 
V.  Read                                  205.  229 

V  Reel  118.  121 
V.  S.  &  W.  Mo.  R.  Go.  129 
V.  Smith  724,  748 
V.  Springfield,  etc.  Ry.  Co.  195 
».  Sutton  705 
V.  Tibbetts  437  a 
V.  Tucker  201 
V.  Updike  237 
V.  Viaing  126,  132,  137,  139 
V.  Washington  330 
V.  Whiting  863,  864 
V.  Wind  226 
V.  Wood                                          831 

Bakewell  v.  Ogden  783 

Balbeck  v.  Donaldson  162 

Balch  V.  Hallett  545 

Balchen  v.  Scott  261,  262,  402 

Balckow  V.  Heme  Bay  Pier  Co.        752 
Baldridge  v.  Walton  602  g,  602  p.  602  t, 

602  u 

Baldwin  v.  Allison  195,  602  n 

V.  Baldwin  626 

V.  Bannister  243.  431 

V.  Campfield  131,  164 

V.  Humphrey  95,  343 

V.  Johnston  127 

V.  Porter  262 

V.  Sherwood  223 

V.  Tuttle  861 

Baldy  v.  Brady  559 

V.  Hunter  452 

Bale  V.  Coleman  357,  359,  360 

Bales  V.  Perry  402,  409 

Balfe  V.  Lord  761 

Balford  v.  Crane  147 

Balfour  v.  Welland  593,  696,  597,  793, 

794 

Balguey  v.  Hamilton  835 

Ball  V.  Alexander  748 

V.  Ball  440 

V.  Coutts  633,  636 

V.  Harris  597,  768,  802,  809 

V.  Maurice  189 

V.  Montgomery  213,  632,  633. 

634.  901 

V.  Safe  Dep.  Co  797 

Ballantine  v.  Young  645,  547 

Ballard  v.  Camplin  232 

V.  Carter  336 

V.  Golob  863 

V.  Taylor  647 

Ballew  V.  Clark  35 

Ballin  v.  Merchants'  Exchange  Bank 

242 
Ballou,  Pet'r  282 

Balls  V.  Strutt  520.  816 

Balsh  V.  Hyham  485,  909,  915 

Balteel  v.  Plumer  254 


Baltimore  v.  Caldwell  195 

Baltimore  Bargain  House  v.  St. 

Clair  694,  819 

Baltimore  Ins.  Co.  v.  Dairymple      199 

Bambaugh  v.  Bambaugh  610 

Bamptou  v.  BirchaLl  862 

Bancroft  v.  Ashhurst  602  bb,  603  h 

V.  Cousen  127,  814 

V.  Lepieur  920 

Banes  v.  Morgan  134 

Bangor  v.  Beal  429,  468 

Bangs  V.  Berg  328,  878 

V.  Smith  337 

Banister  v.  McKenzie  460 

Bank  v.  Benbow  661 

V.  Benning  602  aa 

V.  Campbell  239 

V.  Gilmer  133 

I'.  Guttschlick  602  bb 

V.  Looney  225,  800 

V.  Lumber  Co.  665,  661 

V.  Macy  199 

V.  Mt.  Tabor  413 

V.  Payne  222 

V.  Rutland  72 

V.  Simonton  127 

V.  Tyrrell  202 

V.  Weeks  526 

Bank  Com'rs  v.  B'k  of  Buffalo  207 

Bank  of  America  v.  Pollock     127,  128, 

1.35 
V.  Waydell  815  c,  828 

Bank  of  British  No.  Am.  v.  Freights 

828 
Bank  of  Commerce  v.  Baldwin  661 

Bank  of  England  v.  Lunn  242 

V.  Moffat  242 

V.  Parsons  242 

Bank  of  Mobile  v.  Clark  591 

Bank  of  Niagara  v.  Stanfield     650,  675 
Bank  of  Oregon,  Re  Assignment  of 

598 

Bank  of  Orieans  v.  Torrey         205,  206 

Bank  of  Republic  v.  Baxter  179 

Bank  of  Turkey  v.  Ottoman  Co.       827 

Bank  of  U.  S.  v.  Beverley         308.  559, 

671.  576 

V.  Biddle  229.  230 

V.  Carrington  75.126 

V.  Daniels  855 

V.  Davis  222 

V.  Hirst  918 

V.  Housman  162 

V.  Huth  588.  593 

Bank  of  Virginia  v.  Adams  72 

V.  Clegg  610 

V.  Craig  242 

Bank  of  Visalia  v.  Dillinwood  Co.      82 

Bank  of  Wellsborough  v.  Bache     247  a 

Banking  Co.  s.  Field  392 

Banks.  In  re  667 

V.  Booth  750 

V.  Judah  206 

V.  Le  Despencer  390 

V.  May  97 

V.  Phelan  730,  748 

V.  Sutton  323 

V.  WUkes  415,  421 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


XXXV 


Banner  v.  Lowe 
Baptist  Assoc,  v.  Hart 


556 

46,  693,  724, 

748 

Baptist  Soc.  V.  Hazen  17,  299,  312, 

328 

Barber,  Ex  parte  338 

V.  Barber  212,  862 

V.  Gary  784 

V.  Slade  639,  640 

Barbin  v.  Gasford  137 

Barbour  r.  Gummings  511 

V.  Johnson  129,  210 

V.  Weld  920 

Barclay  v.  Goodloe  858,  860 

V.  Maskelyne  699,  700 

V.  Russell  327 

V.  Wainwright  544,  545 

Bardstown,  &c.  R.  R.  Co.  v.  Metcalfe 

754,  756 

Bardswell  v.  Bardswell       112,  113,  115 

Bard  well  v.  Bard  well  572 

Barefield,  Matter  of  82 

Barford  v.  Street  655 

Barger's  Appeal  554 

Barger  v.  Barger        126,  127,  132,  133, 

144,  166,  837 

Baring,  Re  477 

Barker,  In  re  331,  460 

V.  Barker     127,  286,  401,  812,  843 

V.  Devonshire  795 

D.';Frye  82 

V.  Furlong  330 

V.  Hall  586,  589,  591 

V.  Hill  231 

V.  Hurley  865 

V.  Greenwood      305,  306,  307,  312 

V.  Ins.  Co.  206 

V.  May  17 

V.  McAuley  456 

V.  Peile  282 

V.  Richardson  330,  520 

V.  SmQey  322 

V.  Woods  645,  748 

Barkley  v.  Dosser  329 

V.  Lane  226 

V.  Reav  819 

V.  Tapp  127 

Barksdale  v.  Finney  428,  836 

Barkswortli  v.  Young  82,  84 

Barlow  v.  Barlow  133 

V.  Delany  661 

w.  Grant  119,615,618,915 

V.  Heneage  103 

Barnaby  v.  Griffin  361 

Barnard  v.  Adams      728,  891,  894,  901 

1).  Bagshaw  418 

V.  Duncan  780,  786 

V.  Hunter  202,  831 

V.  Jewett  133 

V.  MinshuU  112 

Barnardiston  v.  Lingwood  188 

V.  Soame  17 

Barnes  ji.  Addy  246,  846 

V.  Dow  386  a.  827  a 

V.  Gay  324 

V.  Grant  112,  117,  120 

V.  Kirkland  272 

V.  McChristie  222 


Barnes  v.  Pearson 

641 

V.  Robinson 

634 

V.  Taylor 

150 

855 

Barnett  v.  Clarke 

388 

V.  Dougherty 

75 

V.  Howard 

671 

V.  Lichtenstein 

660 

V.  Spratt 

187 

Barnett' s  Appeal 

299 

305 

311 

Barney,  In  re 

246 

V.  Douglas 

438 

V.  Griffin 

690 

V.  Saunders         453, 

462, 

463, 

468, 

470,  918 

Barnhart  v.  Greenshields  '^  226 

Barnsley  v.  PoweU  171,  182,  480 

Baruum  v.  Baltimore  43 

V.  Barnum  383 

V.  Hampstead  590 

V.  Le  Master  38,  648 

Barnwall  v.  Barnwall  871,  872 

Barnwell  v.  Cawdor  566 

Barr  v.  Cubbage  828 

V.  Weld  478 

Barr's  Trusts  438 

Barrack  v.  McCulloch  664,  665 

Barratt  v.  Wyatt  543 

Barren  v.  Joy  79,  82 

V.  Hanrick  181,  226 

Barrett  v.  Brown  881 

V.  Buck  150 

V.  Buxton  191 

V.  French  299 

V.  Hartley  429,  904 

V.  Marsh  115,  119 

V.  Reids  592 

V.  Whitney  202 

Barrett's  Succession  443 

Barretto  v.  Young  611  6 

Barribeau  v.  Brant  136 

Barrings  v.  \^'illing  404 

Barrington  t.  Liddell  397,  584 

V.  Tristram  903  a 

Barrington's  Estate  452,477 

Barroilhet  v.  Anspacher  126 

BarroU  v.  Foreman  122,  415 

Barron  v.  Barron         82,  127,  137,  627, 

628,  629,  633,  634,  636,  636, 

639,  647,  654,  673 

V.  Greenbough  181,  226 

V.  Wadkin  64,  327,  434 

Barrow  v.  Grant's  Est.  137 

Barrs  v.  Fewke  162,  157 

Barry  v.  Ley  701 

V.  Marriott  457 

V.  Merchants'  Exchange  Co.        31 

V.  Missouri,  K.  &  T.  Ry.  Co.    886 

V.  Woodham  888 

Barrjonore  v.  Ellis  670 

Barstow  v.  Kilvington  226 

Bartclls,  Matter  of  282 

Barter  v.  Wheeler  761 

Bartle  v.  Wilkins  891,  892 

Bartlett  v.  Bartlett         149,  162,  602  b, 

680,  826 

V.  Downes  352,  355 

t>.  Gage  602  ff 

V.  Gouge  332 


XXXVl 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Bartlett  v.  Green  363 

V.  Janeway  640 

V.  Johnson  747 

V.  King  701,  709,  724,  748 

V.  Nye  724,  748 

r.  Pickersgill        76,  126,  133,  135, 

137,  206 

V.  Remington  82,  96 

V.  Salmon  171 

V.  Sears  383 

V.  Southerland  499 

V.  Timsley  82,  322 

Bartlett,  Petitioner  705 

Bartley  v.  Bartley  503,  807 

Bartol's  Estate  460 

Barton  v.  Barton  514,  516 

V.  Briscoe  652,  653 

V.  Magruder  132 

V.  Tunnell  414 

Barton's  Estate         140,  459,  465,  467, 

918 

Barton's  Trust  545 

Bartram  v.  Whichcote  769 

Barwell  v.  Barwell  428,  869 

V.  Parker  600 

Barwick  v.  White  828 

Bascom  v.  Weed  56,  275,  493,  499 

Baseomb  v.  Albertson       384,  724,  738, 

741,  748 

Basford  v.  Peirson  685 

Baskerville  v.  Baskerville  359 

Bass  V.  Scott  299,  310 

V.  Williams  866 

Bassett  v.  Fisher  602  ee 

V.  Granger  284 

V.  Nosworthy  218,  220 

V.  O'Brien  347 

V.  Spofford  128 

Basshor  Co.  i'.  Carrington  800 

Bassil  V.  Lister  400 

Bastard  v.  Proby  371 

Basy  V.  Magrath  192 

Batchelder  v.  Central  Nat.  Bank     122, 

800 
Bate  V.  Hooper  439,  449,  467,  902, 

932 
Bateman  v.  Bateman  308 

V.  Davis      453,  460,  467,  784,  849, 
851 
V.  Faber  671 

V.  Hotchkin  396 

V.  Margerison  885 

V.  Ross  672 

V.  Ward  865 

Bates  v.  Coe  588 

V.  Dandy  633,  640,  641 

V.  Heard  183 

V.  Johnson  829 

V.  KeUy  126,  133,  828 

V.  Mackinley  644,  545,  556 

V.  Norcross  241 

V.  Preble  861 

V.  Scales  419,  462,  468 

V.  Spooner  391,  448 

V.  State  261  a 

V.  Underbill  418,  458 

Bath  V.  Abney  325 

V.  Bradford         600,  764,  770,  915 


Bath  and  Montague's  Case    189   509  b 
Bath  Gas  Light  Co.  v.  Claffy  21 

Bath  Sav.  Bank  v.  Fogg  82 

Bath  Savings  Inst'n  v.  Hatho  82 

Batho,  In  re  58 

Bathurst  v.  Murray  636 

Baton  V.  Jacks  509  c 

Batteley  v.  Windle  158 

Battinger  v.  Budenbecker  66 

Baud  V.  Fardell  455.  467 

Bauerman  v.  Radenius  330 

Baugh  V.  Price  187 

V.  Reed  903  a 

Baugh's  Ex'r  v.  Walker  195,  428 

Baum  V.  Grigsby  232,  237,  238 

Baumgartner  v.  Guessfield         126,  132 
Bawtree  v.  Watson  188 

Baxter  v.  Costin  205,  428 

V.  Wheeler  591 

Bay  State  Gas  Co.  v.  Rogers  427 

Bayard  v.  Colefax  602  aa,  602  dd. 

V.  Farmers',  &c.  Bank        225,  242 

814 
Bayles  v.  Baxter  126,  137,  139, 

215 

Bavley,  In  re  357 

V.  Boulcott  75,  77,  86,  97 

V.  Gumming  273,  502 

V.  Greenleaf         232,  233,  234,  239 

V.  Mansett  277,  287 

V.  Powell  900 

V.  Williams  194 

Baylies  v.  Baylies  329 

V.  Payson  17,  82 

Baylis  v.  Newton  147,  151 

V.  Staats  275 

Baylor  v.  Hopf  132 

Baynard  v.  WooUey  418,  848,  884,  931 

Bayne  v.  Crowther  118 

V.  Wylie  592 

Bazemore  v.  Da\a3  836 

Beable  v.  Dodd  652 

Beach  v.  Beach    17,  328,  330,  353,  520, 

672 

V.  Dyer  171,  172 

V.  Fulton  Bank  600 

Beaches  v.  Dorwin  843 

Beadmore  v.  Gregory  889 

Beal  II.  Beal  584 

V.  Burchstead  72 

V.  Harman  610 

V.  Symonds  435 

V.  Warren  104.  108,  685 

Beale  v.  Coon  330 

Beales  v.  Spencer  649 

Beall  V.  Dingman  800 

V.  Fox  724 

Beals  V.  Lee  189 

Bean  v.  Bridgers  144 

V.  Commonwealth  262,  312, 

313 

V.  Simpson  438 

Bear  V.  Bear  677 

V.  Koenigstein  126 

V.  Whistler  232 

Beard  v.  Campbell  184 

V.  Kimball  586 

V.  NutthaU  111,  367 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


xxxvu 


Beard  v.  Stanton  865 

V.  Westcott  379 

Bearden  v.  White  66 
Beardsley  v.  Bridgeport  etc.  Asj'lum 

465,  476  a 

V.  Ontario  Bank  759 

Beasley  v.  Magrath  613,  618 

V.  Wilkinson  339,  494 

Beatson  v.  Beatson  102,  105 

Beattie  v.  Butler       602g.   602  h,  602  r, 

602  X 

V.  Crewdson  223 

V.  Da\'is  591 

V.  Johnston  877 

Beatty  v.  Clark  199,  476,  490 

V.  Knowler  44 

V.  Kurtz  748 

V.  Marine  Ins.  Co.  44 

Beatty's  Estate  '15,  418 

Beaubien  v.  Poupard  205 

Beauchainp  v.  Bertig  610,  624 

Beauderk  v.  Ashburnham  509 

Beaudry  v.  Montreal  869 

Beaufort  v.  Collier  646,  647,  653 

Beauland  v.  Bradley  194 

V.  Halliwell  550 

Beaumont  v.  Boultbee  178,  863 

V.  Bramley  186 

11.  Meredith  827 

V.  Oliveira  704 

V.  Salisbury  317,  319 

Beavan  v.  Oxford  438 

Beaver  v.  Beaver  82 

V.  Filson  730 

V.  Ross  448 

Bechtel  v.  Ammon  79,  86 

Bechtold  v.  Read  205 

Beck  V.  Graybill  126,  133 

V.  Kinealv  485,  910 

Becker  v.  Chester  391,  448 

V.  Schwerdtle  171,  181 

Becker's  Estate  448 

Beckett  v.  Cordley  53 

Beckford  v.  Beckford  144 

V.  Close  862 

V.  Kemble  72 

V.  Wade  228,  865,  865 

Beckley  v.  Newland  68 

Beck  with  v.  Laing  873 

V.  St.  Philip's  Parish  701,  732 

735  a 

V.  Union  Bank  438 

Beddoe,  In  re             891,  899,  910,  915 

Beddoes  v.  Pugh  433,  926 

Bedford  v.  Abercorn  375 

V.  Bedford  448,  615,  700 

V.  Bedford's  Adm'r  729,  748 

V.  Woodman  811 

Bedford's  Appeal  380,  540,  546 

Charity  282,  697,  742 

Bcdilian  v.  Seaton  181,  182 

Bcdingfeld  and  Herring's  Contract, 

In  re  504,  773,  784 

Bedwell  v.  Froome  144 

Beebe  v.  De  Baum  602  p,  602  dd, 

782 

Beech  v.  Keep  98,  100,  101 

V.  Vincent  584 


Beecher  v.  Foster  598,  860 

V.  Major  130,  139 

V.  Wilson  144 

Beeching  v.  Morphew  654 

Beekman  v.  Bonsor  259,  384,  402,  748 

V.  People  748 

Beer  v.  Tapp  899 

Beer's  Goods  264 

Beere  v.  Beere  213 

t.  HofTminster  511  a 

Beery  v.  Trick  456 

Beeson  v.  Beeson  196,  205,  207,  209. 

428,  850,  853 

Beevor  v.  Partridge  119 

Begbie  v.  Crook  270,  273 

Beisel,  /n  re  613 

Belch  V.  Harvey  855 

Belcher  v.  Belcher  191 

V.  Parsons  411,  914 

V.  Saunders  172 

Belchier,  Ex  parte  404,  406,  409,  411, 

416,  421,  441,  443,  779 

Belknap  v.  Belknap  279,  919 

V.  Scaley  186 

Bell  V.  Bell       627,  631,  632,  639,  645. 

828,  863 

V.  Hallenback  149 

V.  Henderson  175 

V.  Hyde  48 

V.  Kellar  660 

V.  Phyn  380 

V.  Scammon  299 

V.  Stewart  144 

V.  Turner  900,  902 

V.  Webb  205,  299 

V.  White  277 

Bell's  Estate  918 

Bcllah,  In  re  458 

Bellamy  v.  Bellamy  428 

V.  Burrow  82 

V.  Sabine  172 

V.  Thornton  615,  618 

Bellas  ?'.  McCarthy  211 

Bellasis  v.  Compton  76,  77,  83,  86, 

139 

Bellinger,  In  re  768 

Beilington  v.  Shaffer  606 

V.  Thompson  263 

Bellington's  Appeal  458 

Bellow  V.  Russell  202 

Bellows  V.  Partridge  590,  600 

Belmont  r.  Obrien  288,  294,  414 

Beloate  v.  Hennesee  126 

Belote  V.  White  858 

Beloved  Wilkes  Charity,  Re  611  a 

Belt  V.  Ferguson  213 

Beman  v.  Rafford  757 

Bemis  v.  Call  684 

Bcmmcrly  v.  Woodard  918,  919 

Benborc  v.  Davies  901 

Bcnbow  V.  Moore  144 

V.  Townsend  75,  77,  86,  139 

Benbrook  v.  Yancy  181 

Bence,  In  re  380,  381 

Bench  v.  Biles  569,  570 

Beudall  v.  Bendall  894,  918 

Bender  v.  Reynolds  649,  651 

V.  Zimmerman  863 


XXXVlll 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.) 


Beadyshe,  In  re 

630 

Benvoize  v.  Cooper 

33S 

Benedict  o.  Dunning 

603,  920 

Benzien  v.  Lenvir 

217 

Bcnett  V.  Wyndham 

744,  914 

Berchard  v.  Scott 

731 

Benford  v.  Daniels 

918 

Berdoe  v.  Dawson 

291 

Benger  v.  Drew 

137,  144 

Beresford,  In  re 

635 

Bengough  v.  Edridge 

379,  390 

V.  Armagh 

665 

Benhani  v.  Rowo 

602  t) 

V.  Beresford 

845 

Benjamin  v.  Gill 

433 

V.  Hobson 

636 

Benlow  v.  Townsend 

98 

Bergen  v.  Bennett 

602  h,  602  t 

Benn  v.  Dixon 

449 

451,  547 

V.  Rendall 

765 

Benner  v.  Mauer 

448 

Bergengren  v.  Aldrich 

484,  528 

Bennet  v.  Davis            38 

,  51, 

121,  277, 

Berger  v.  Berger 

232,  239 

322,  324 

V.  Duff 

402,  770,  779 

Bennett,  Ex  parte 

197 

207,  209 

Bergman  v.  Bogda 

560 

V.  Atkins 

892,  901 

Bergmann  v.  Lord 

815  o 

V.  Austin 

245 

Beringer  v.  Beringer 

182 

V.  Bennett 

144,  386  a 

V.  Lutz 

132 

V.  Biddle 

636,  899 

Berkeley  v.  Green 

598 

V.  Brundage 

602  u 

V.  King's  College 

69 

V.  CoUey     467,  532, 

534, 

535,  851, 

V.  Partington 

117 

863,  867 

V.  Ryder 

512,  517 

V.  Denniston 

602  .s 

V.  Swinburne 

118,  620 

V.  Dillingham  627,  632,  639 

V.  Foster  885 

V.  Fulmer  77 

V.  Gallaher  448 

V.  Going  892,  901 

V.  Harper  181 

V.  Hayter  714,  729 

V.  Honeywood  256,  276,  282 

V.  Hutson  126 

V.  Judson  172,  173 

V.  Lowe  380 

V.  Lytton  924 

r.  Mayhew  837 

V.  Merriman  185 

V.  Merritt  813 

V.  Murphy  237 

V.  Oliver  636 

V.  Pierce  266 

V.  Preston  843 

V.  Robinson  514 

V.  Union  Bank  590,  602  d 

V.  Vade  171,  182,  189 

V.  Whitehead  871 

Bennington  Iron  Co.  v.  Isham  757 

Benscotter  v.  Green  95 

Bensell  v.  Chancellor  189 

Benson  v.  Benson  260,  653 

V.  Bruce  918 

V.  Dempster  75,  79,  855,  864 

V.  Hawthorne  207 

V.  Heatham  206 

V.  Whittam  117.  119 

Bensusan  v.  Nehemias  852 

Bent  V.  Priest  128 

Bentham  v.  Hincourt  243 

V.  Smith  254 

V.  Wiltshire  501,  803 

Bentley,  In  re  329 

V.  Craven  427,  430 

D.  Dixon  281 

V.  Mackay  82,  96 

V.  Phelps  226 

V.  Shreve  468 

Benton,  In  re  671 

V.  Boston  City  Hosp.  747 

Benton  Land  Co.  v.  Zeitler  602  i 


Berkhamstead  School,  Ex  parte        742 

Berkmeyer  v.  Kellerman  197 

Bermingham  v.  Wilcox     402,  415,  418, 

848,  876 

Bernard  v.  Bongard  132,  133 

V.  Minshull  112 

Bernstein,  Re  493 

Berrien  v.  Thomas  783 

Berry  v.  Briant  117,  118 

V.  Bromberg  299 

V.  Dunham  386  a 

V.  Evendon  79,  86 

V.  Hamilton  611 

V.  Norris  48,  86 

V.  Skinner  602  h 

V.  Stigall  477,  918 

V.  Usher  244 

V.  Wiedman  141,  144 

V.  WUliamson  276,  359 

BerryhiU's  Appeal  851,  912,  918 

Berthold  v.  Holmes  602  q 

Bertie  v.  Falkland  514 

Bertron  v.  Polk  770 

Berwick  v.  Murray  468 

Besland  v.  Hewett  239 

Besondy,  In  re  613 

Bessey  v.  Windham  587 

Besson  v.  Eveland  144 

Best  2!.  Blackburn  173 

1).  Campbell  141,  865 

V.  Donmall  616 

V.  Storr  173 

Bethea  v.  McColl  612,  615 

Bethune  v.  Dougherty  259 

V.  Kennedy  451,  547 

Bettle  V.  Wilson  673 

Betts  V.  Betts  678 

Betty  V.  Elliott  357 

Beurhaus  v.  Cole  698,  700 

Bevan  v.  Webb  195,  538 

Bevan's  Trusts,  In  re  383 

Beverley  v.  Brooke  818 

Beverleys  v.  MUler  463,  468 

Beverly's  Case  191 

Bholen  v.  Cleveland  438 

Bibb  V.  Hunter  80,  126 


I^a)EX    TO    CASES    CITED. 


XXXIX 


[References  are  to  sections.) 


639 
680 
97 
117 
132,  144 
423 
423 
79 
571 
900 
765 
72 
861 
76 
506 
545 
117,  620 
673,  874 
903  a 
602  < 
127 
820 
292 
184 
104,  593 
541 
440 
204,  210 
108 
590 
133 
690,  593 
645,  902 
272 
613 
414 
607 
112 
448 
184 
270 
168.  814 
757 
511  c 
54,  145 
697,  787,  792,  795, 
796 
Binney  v.  Plumly  330 

Binns  v.  LaForge  248,  386,  386  a,  815  a 
Binsse  v.  Page  432 

Birch,  In  re  518 

V.  Blagrave  103.  147.  151,  165 

V.  EUames  217 

i;.  Wade  112.258 

Birch's  Trustees,  In  re  612 

BirchaU.  In  re  259,  267 

Bircher  v.  Walther  828 

Bird  V.  Bird  456 

I'.  Graham  863 

V.  HunsdeQ  516 

V.  Johnson  386 

V.  Maybury  117 

V.  Pegram  668 

V.  Pickford  382.  391 

r.  Stride  511b 

Bird's  Estate  918 

BirdsaU  v.  Hewlett  675.  903  a 

Birdwell  v.  Cain  195 


Bibb  V.  McKinley 
V.  Pope 
p.  Smith 
Bibby  v.  Thompson 
Bible  V.  Marshall 
Bick  V.  Matthews 

V.  Motley 
Bickford  v.  Bickford 
Bickham  v.  Cruttwell 

V.  Smith 
Bickley  v.  Guest 
Bicknell  v.  Field 

V.  Gouch 
Bicochi  V.  Casey-Swasey  Co. 
Biddle  v.  Perkins 
Biddle's  Appeal 
Biddies  v.  Biddies 
Bifield  V.  Taylor 
Bigelow  V.  Morang 
Bigler  v.  Walker 
Bigley  v.  Jones 
Bignell.  In  re 

Bignold's  Settlement,  In  re 
Bilbie  v.  Lumley 
Bill  V.  Cureton 

V.  Kynaston 
Billing  V.  Brogden 

V.  Southee 
BUlingham  v.  Lawthen 
Billings  V.  Billings 

V.  Clinton 

V.  Parsons 

V.  Warren 
Billingslea  v.  Moore 
Billingsley  v.  Crichett 

V.  Matthew 
Billington's  Appeal 
BiUs  V.  BiUs 
Bingham,  Re 

V.  Bingham 

V.  Clanmoris 

V.  Stewart 

V.  Weiderwax 
Bingham's  Appeal 
Binion  v.  Stone 
Binkfl  V.  Rokeby 


Birkbeck's  Estate  122,  646 

Birket  v.  El  ward  815  c 

Birkett  v.  Hibbert  636 

Birkhanistead  School  Case  725 

Birkhead  v.  Edwards  84 

Birks  V.  Micklethwait  848,  901 

Birley  v.  Birley  511  o 

Birls  V.  Betty  417,  848,  876 

Birmingham  v.  Kirwin  572 

Birmingham    etc.  Co.  v.   Louis- 
ville, etc.  Co.  328,  330,  816 
D.Lane                   386  a,  671,  815  o 
Birmingham  School,  In  re  742 
Biron  v.  Mount  593 
V.  Scott  881 
Biscoe  V.  Jackson  728 
V.  Kennedy  657 
V.  Perkins                              305,  307 
V.  Thweatt                           _  701 
Bishop  V.  American  Preservers'  Co.     21 
V.  Bishop                       545,  550,  575 
V.  Curtis  327 
V.  Halcomb  438 
V.  Seaman's  Bank  82 
V.  Talbot                                        216 
Bishop  Gore's  Charity               701,  714 
Bishop  of  Oxford  v.  Leighton            294 
Biss,  In  re                                       196,  538 
Bittenger  v.  Railroad  Co.                   589 
Bixler  v.  Taylor                                    260 
Bizzell  V.  McKinnon                   482,  520 
Black  V.  Black                       79.  137,  144 
V.  Blakely                                      918 
V.  Creighton                                  827 
V.  Irwin                                  402,  779 
V.  Ligon                        628,  529,  538 
V.  McCauIay                                 380 
V.  Ray                                             546 
V.  Webb                                         358 
Blackburn  v.  Blackburn  75 
V.  Byne                                           612 
V.  \\  ebb                                      386  a 
Blackburne,  Ex  parte                 276,  504 
V.  Edgeley                                      201 
V.  Gregson            232,  236,  237,  239 
V.  Stables             359,  360,  366,  390 
Blackeley  v.  Holton                             109 
Blackct  V.  Langlands                            219 
Blackford  v.  Christian                          189 
Blackie  v.  Clarke                          172,  204 
Blackley  v.  Fowler                    199,  602  v 
Blacklow  V.  Laws                        649,  783 
Blackmore  v.  Shelby                             200 
Blackshear  v.  Burke                         815  b 
Blackstone  v.  Henworth  Hospital     694 
Blackstone  Bank  v.  Davis     386.  386  a, 
555,  652 
Blackville  v.  Ascott                           511  6 
Blackwood  v.  Burrows      419,  453,  778, 

851 

Blagden,  Ex  parte  626,  632 

Blagge  I'.  Miles  511  c,  610 

Blagrave  ».  Blagrave  309,  312,  315 

V.  Hancock  376,  383,  390 

V.  Routh  202 

Blaha  v.  Borgman  82 

Blair  v.  Bass  137 

V.  Bromley  172,  236,  861 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Blair  v.  Hampton 

848,  849 

Blood  V.  Blood 

29S 

V.  Hill 

828 

Bloodgood  V.  Bruen 

785 

V.  Johnson 

195,  431 

V.  Sears 

186 

V.  Nugent 

863 

Bloom  V.  Rensselaer 

602  d,  602  X, 

V.  Orniond 

869 

602  bh 

V.  Owles 

222 

V.  Waldron 

681 

768.  774 

Blaisdell  v.  Locke 

99 

Bloomar,  In  re 

56 

V.  Stevens 

836 

Bloomfield  v.  Eyre 

245,  871 

Blake  v.  Allman 

621 

V.  Stowe  Market 

724 

ji.  Blake 

82,  918 

Blound  V.  Bestland 

639 

V.  Bunbury 

329 

Blount  V.  Burrow 

900 

V.  Foster 

856 

V.  Carroway 

602  fir 

V.  Hey  ward 

218 

V.  Robeson 

863 

V.  Hungerford 

218 

Blue  V.  Everett 

855 

V.  O'Neal 

195, 

299, 

301,  920 

V.  Marshall 

482,  528 

j;.  O'Reilly    449 

511 

648 

549, 551 

V.  Patterson 

182, 

843,  863 

V.  Sanderson  769 

V.  Trader's  Nat'l  Bk.  229 

V.  Wolfe  865 

Blakeley  v.  Brady  98,  101 

Blakely,  Petitioner  503 

Blakeney  v.  Blakeney  117 

Blaker  v.  Cooper  672 

Blakley  v.  Marshall  546 

Blanchard,  Re  292 

V.  Moore  226 

V.  Tyler  221 

Blanchet  v.  Foster  213 

Bland  v.  Bland  113,  116,  160 

V.  Dawes  647 

V.  Fleeman  864 

Bland's  Adm'r  v.  Bland  386  a,  388 

Blandford  v.  Thackerell  379,  710 

Blaney  v.  Blaney  566 

Blann  v.  Bell  450,  451 

Blasdell  v.  Locke  98 

Blatch  V.  Wilder  121,  501,  787 

Blatchford  v.  WooUey  658,  849 

Blauvelt,  Re  453 

V.  Ackerman  429,  469,  918 

Blauvelt's  Estate,  In  re  457 

Bledsoe  v.  Games  232 

Bleeker  v.  Bingham  367 

Bleight  V.  Bank  499 

Blenkinsop  v.  Blenkinsop  213,  641 

Blennerhasset  v.  Day  228,  229,  230, 

782,  861,  867 

Blennon's  Estate  748 

Blevins  v.  Buch  573,  677,  862 

Blewitt  V.  Olin  437  a 

Blight  V.  Bank  218,  219,  2.39 

V.  Blight  556 

V.  Ewing  765 

V.  Schenck  404,  409,  591,  779 

Blin  V.  Pierce  58,  330 

Blindell  v.  Hagan  21 

Blinkhorne  i'.  Feast  54,  153 

Bliss  V.  American  Bible  Society       701, 

724,  747,  748,  892, 

903  a 

V.  Bridgewater  260 

V.  Matteson  207,  212 

V.  West  213 

Blithe's  Case  48,  489 

Blithman,  In  re  927 

Blodgett  V.  Hildreth  81,  162 

Blngg  V.  Johnson  468,  472 

Blois  V.  Hereford  636 


Blumenthal  v.  Brainard  762 
Blundell,  In  re         246,  671,  702,  815  b 

Blunder  v.  Barker  201 

Blunt  V.  Blunt  72 

V.  Burrow  87 

Blyholder  v.  Gilson  75,  137 

Blyth  V.  Fladgate  246,  813 

Board  V.  Wilson  232,  234 
Board  of  Charities  v.  Lockard  386  a 
Board  of  Com'rs  v.  Dinwiddle          729, 

748 

V.  Strawn  122,  828 

Board  of  Ed.  v.  Bakewell  700 

Boardman  v.  Boardman  545,  546 

V.  Halliday  586,  590 

V.  Larrabee  347 

V.  Mossman  419 

V.  Willard  99 

Boaz  V.  Boaz  275 

Boazman  v.  Johnson  585,  596,  597 

Bobb  V.  Bobb  162 

V.  Wolff  554 

Bochlcrt  V.  McBride  770 

Boddington  v.  Castelli  345 

Boddy  V.  Dawes  616 

V.  Lefevre  244 

Boden  v.  Jaco  602  / 

Bodenhan  v.  Hoskins  246,  813,  907 

Bodine  v.  Edwards  142,  143 

V.  Moore  602  bb,  602  ff 

Bodley  v.  Goodrich  590 

Bodwell  V.  Nutter  82,  128 

Boehl  V.  Wadgj'mar  133 

Boehm  v.  Clark  380 

Boenhardt  v.  Loch  732,  742 

Bogardus  i'.  Trinity  Church  45 

Bogart,  Matter  of  117,  119 

Bogert  V.  Hertell  501,  768 

V.  Perry  132 

Boggs  V.  Varner  221,  222 

Bogle  V.  Bogle  276,  280,  900 

Bohannon  !;.  Strespley  863 

Bohle  V.  Hasselbroch  429,  837,  842 

Bohlen's  Estate  225,  242,  779 
Bohm  V.  Bohm            171,  181,  209,  226 

Bohon  I).  Barrett  112 

Boies  V.  Benham  237 

Roland  v.  Tiernay  448 

Bold  V.  Hutchinson  359,  361 

Bole  V.  McKelvey  591,  602 

Bolin,  In  re  82 

Bolitho  V.  Gidley  655,  670,  671 


INDEX   TO    CASES    CITED. 
[Refftrences  are  to  sections.] 


BoUes  V.  State  Trust  Co.  13 

Bolm  V.  Headley  639 

Bolton,  Matter  of  448,  611 

Bolton  V.  Bolton  107,  108 

V.  Curre  669,  671,  848,  849 

V.  Deane  871 

V.  Gardner  428 

V.  .Jacks  498 

V.  Jenks  765 

V.  Powell  859 

V.  Staunard  805 

V.  Williams  658,  659 

Eoniar  v.  Mullins  836 

Bond,  Ex  parte  615 

V.  Barksdale  225 

V.  Brown  228,  229 

V.  Hopkins  228,  855 

V.  Mc Watty  890 

V.  Moore  160 

V.  Nurse  17 

V.  Simmonds  637 

V.  Turner  918 

V.  Ziegler  225,  814 

Bondfield  v.  Hasseli  388 

Bondholders  of  York  and  Cum- 
berland R.  R.  Co.,  In  re  753 
Bone  V.  Cook                                 417,  418 
V.  Pollard                                 136,  144 
Boney  v.  HoUingsworth  201 
Bonham  v.  Newcomb  107 
Bonifaut  v.  Greenfield        270,  273,  499 
Bonithon  v.  Hockmore                        904 
Bonn  V.  Davant                                    918 
Bonner  v.  Bonner                                   573 
V.  Grigsbv                                   815  c 
V.  Holland                                      828 
V.  Lessley                                       275 
Bonney  v.  Ridgard            225,  228,  769, 
809,  810,  811,  855,  865 
Bonaall's  Appeal       458,  606,  607,  836. 

842 

Bonser  v.  Kinnear  112,  258 

Booker  v.  Anderson  187,  770 

V.  Booker  386 

Bool  V.  Mix  33 

Boon  V.  Barnes  239 

V.  Hall  477,  552 

V.  Murphy  237 

V.  Root  195,  431,  861 

Boone  i'.  Baines  220 

V.  Chiles  218,  219,  222.  229. 

855,  863 

V.  Citizens'  Savings  Bk.  82 

Booram  v.  Wells  490,  771,  783 

Booth,  Ex  parte  402 

Re  117,  873 

V.  Alington  254 

V.  Ammerman  47 

V.  Booth      262,  419,  454,  460,  467, 

508,  848,  849 

V.  Bradford  195,  477 

V.  Bristol  County  S.  Bank  82 

V.  Clark  70,  72 

V.  Field  315 

V.  Lenox  144 

V.  MoNair  590 

V.  Oakland  S.  Bank  S2 

V.  Purser  475 


Booth  V.  .Sineath 
D.  ^\'a^rington 
V.  Wilkinson 
Bootle  V.  Blundell 
Boozer  v.  Teague 
Borden  v.  Sumner 
Boreham  v.  Bignall 
Boreing  v.  P'aris 
Borel  II.  Bobbins 
Bork  V.  Martin 
Borneman  v.  Sedlinger 


xli 


613 

861 

443 

566,  768 

133 

592 

476  a,  928 

82 

769 

79,  86 

87 


Borough  of  Hertford  v.  Poor  of 

Hertford  900 

Borrow  v.  Borrow  126 

Borst  V.  Corey  234 

Borum  v.  King  98 

Bos  V.  lowing  237 

Bosanquet  v.  Dashwood  192 

Boschette  v.  Power  826,  827 

Bosken  v.  Giles  647 

Boskerch  v.  Herrick  620 

Bosler's  Estate  918 

Bosom  V.  Stratham  88,  90,  93,  216 

Boss  I'.  Goodsall  460 

Bostick  V.  Elliott  426 

V.  Wenton  254 

Bostleman  v.  Bostleman  126,  135 

Bostock  V.  Blakeney         476,  477,  552, 

913 
V.  Floyer  402,  441,  444,  929 

Bostock's  Case  379 

Boston  V.  Boston  641 

V.  Turner  692,  593 

Boston,  &c.  Co.  V.  Boston  761 

Boston  &  C.  S.  Co.  r.  Reed  166 

Boston  Franklinite  C'o.  v.  Condit     499 
Boston  Safe  Deposit  &  Trust  Co. 

V.  Mixter  780,  782 

Bostwiek,  Matter  of  615,  617,  618 

V.  Atkins  200,  205 

I'.  Estate  of  Dickson  863 

Bosvil  V.  Brander  627,  633,  640 

Boswell  V.  Coaks  195 

V.  Cooks  195 

V.  Cunningham  127,  206 

V.  Dillon  359 

V.  Parker  585 

Bosworth,  Iji  re  894,  909,  910 

Botelcr  v.  Allington     13.  321,  347,  520 

Bothen  i;.  McColl  918 

Bothomly  v.  Fairfax  600 

Botsford  V.  Burr        126,  132,  133,  134. 

137,  139,  161 

Bottom  V.  Fultz  388 

Bouch  V.  Sproule  545 

Boughton  V.  Boughton       103,  104,  162 

V.  James  160,  383,  393 

V.  Langlej'  306 

Bouldin  v.  Alexander  277,  733 

Boultbee  r.  Stubbs  210 

Boulton,  Ex  parte  438 

Boulton  1'.  Beard  901,927 

Bound  zi.  So.  Car.  Ry.  Co.  511 

Bourdillon  v.  Adair  633 

Bourkei'.  Callanan  133,  134,  171, 

172,  206 

Bourne  v.  Buckton  397 

V.  Mole  826.  827 


xlii 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Bourquin  v.  Bourquin  222,  830 

Bourset  v.  Savage  334,  82H 

Bousfield  V.  Hodges  780 

Bouv6  V.  Cottle  595 

Bovey  v.  Smith  217,  222,  621, 

828,  830 

Bowden,  In  re  864 

V.  Bowden  451 

V.  Brown  725,  728 

V.  Laing  117,  118 

V.  Parrish  223 

Bowditch  V.  Andrew  118,  920 

V.  Bannelos  280,  282,  297 

V.  Soltyk  476  a,  899,  903  a 

Bowen,  In  re  384,  736 

V.  Evans  218,  230 

V.  Idley  183 

V.  Lewis  358 

V.  McKean  127 

V.  Penny  437  b 

V.  True  568 

Bowers  v.  Clark  673 

V.  Heaf  188 

V.  Keesecker  324 

V.  Seeger  404,  412,  415 

V.  Toronto  207,  430 

Bowes,  Ex  parte  336,  337 

V.  East  London  484,  629,  851, 

872 

y.  Strathmore  626,  913 

Bowie  V.  Berry  324 

Bowker  v.  Bowker  251 

V.  Pierce  465,  918 

Bowlby  V.  Thunder  112 

Bowler  v.  Curler  181 

Bowles,  In  re  381 

V.  Bowles  231 

V.  Drayton  472 

V.  Orr  72 

V.  Stewart  851 

V.  Weeks  277,  287 

Bowling  V.  Bowling  632 

V.  Cobb  918 

V.  Davidson  590 

V.  Winslow  632,  636 

Bowman  v.  Bates  180 

V.  Missionary  Soc.  730 

V.  Wathen  756,  757,  855 

Bowman's  Appeal  607 

Bown,  In  re  671 

Bowra  v.  Wright  54 

Boyce  v.  Corbally  502 

V.  Edbrooke  484 

V.  Grundy  171 

V.  Hanning  506 

V.  Kelso  Home  448 

V.  Stanton  181 

Boycote  v.  Cotton  584 

Boyd  V.  Boyd  137,  415,  420,  420, 

861,  863 

V.  GiU  875 

V.  Hankinson  171 

V.  Hawkins  195,  615,  618, 

917,  918 

V.  McClure  127 

V.  McLean  126,  137 

V.  Mutual  Fire  Ins.  Ass'n  863, 

865 


Boyd's  Estate 

38a 

Boydell  v.  Golightly 

390 

Boyden  v.  Partridge 

873 

Boyer  v.  Cockerell 

29& 

V.  Decker 

277 

V.  Libey 

126 

V.  Sims 

299 

Boyes  v.  Cook 

511  c 

Boy  kin  v.  Ciples  51,  240,  277,  647 

Boylan  v.  Deinzer  217 

Boyle  V.  Boyle  112 

V.  Northwest.  Bank  122,  828 

Boyne  v.  Crowther  119 

Boynton  v.  Brastow  195 

V.  Dyer  468 

V.  Gale  82,  96 

V.  Housler  172 

V.  Hubbard  188 

V.  Rees  218,  222 

V.  Richardson  90Q 

Boys  V.  Boys  451,  466 

Boyse  v.  Rossborough  189 

Brabrook    v.    Boston  Five    Cts. 

Sav.  Bank  98,  99,  100 

Brace  v.  Ormond  903  a 

V.  Van  Eps  97 

Bracken  v.  Beatty  451 

V.  Miller  218,  222 

Brackenbury  v.  Brackenbury  103, 

104,  165 

Brackenridge  v.  Holland  195,  205 

Brackett  v.  Baum  602  bb 

Brackin  v.  Newman  141 

Bradford  v.  Belfield    294,  344,  408,  494 

V.  Brownjohn  196,  533 

V.  Burgess  920 

V.  Greenway  655,  660 

V.  Harper  39 

V.  King  70,  71,  328,  878 

V.  Marv'in  237 

V.  Monks  503 

V.  Romney  186 

Bradford  School  of  Industry,  Re      728 

Bradish  v.  Gibbs  48,  367 

Bradley  v.  Carnes  252 

V.  Chase  185 

V.  Chesebrough  828 

V.  Emerson  654 

?).  Luce  133,  843 

V.  McBride  230 

?;.  Peixoto  386 

V.  Phil.  R.  R.  Co.  602  c 

Bradlin  v.  Hord  219,  222 

Bradner  v.  Falkner  547 

Bradshaw  v.  Bradshaw  414,  614 

V.  Ellis  308,  765 

V.  Fane  769 

V.  Skilbech  380 

V.  Thompson  714 

Bradstreet  v.  Butterfield  282 

V.  Kinsella  419  a 

Bradt  v.  Hodgdon  248,  501,  765 

Bradwell  v.  Catchpole  416,  419,  830 

V.  Weeks  64 

Brady  v.  Dilley  910 

V.  McKosker  182 

Bragg  V.  Carter  261 

V.  Paulk  82 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.) 


xliii 


Brain  v.  Bailey  655,  667 

Brainard  v.  Ruck  861 

Brainerd  v.  Dunning  597 

Braman  v.  Oliver  195 

V.  Stiles  121,  386  a,  765 

Bramhall  v.  Ferris  118,  386  a,  555 

Bramiet  v.  Bates  380 

Bran  v.  Marlborough  219 

Branch  v.  Am.  Nat.  Bank  598 

V.  Buckley  195 

V.  De  Wolf  466 

IV  Griffin  815  c 

Brandenburg  v.  Thorndike  920 

Brander  v.  Brander  544,  545 

Brandies  v.  Cochrane  96,  104, 

252,  254 

Brandon  v.  Aston  388,  555,  619 

V.  Brandon  347 

V.  Carter  259,  260,  270,  282 

V.  Hogart  468 

V.  Robinson  386,  652 

V.  Woodthorpe  633 

Brandt  v.  Gelston  359 

Brandt's  Appeal  569 

Brannin  v.  Brannin  215 

Brashear  v.  Marcy  380 

V.  West  438,  585,  592,  593 

Brasier  v.  Hudson  792 

Brassey  v.  Chalmers  493,  503,  769 

Brasswell  v.  Morehcad  541 

Brathwaite  v.  Brathwaite  431 

Bratt  V.  Bratt  232 

Braun  v.  First  German  Church  83, 

181 
Braunstein  v.  Lewis  671 

Brawley  v.  Catron  233,  235 

Braxton  v.  State  426 

Bray,  Ex  parte  910 

V.  West  270,  271 

Braybrooke  v.  Inskip        274,  336,  337, 
597,  801 
Brazel  v.  Fair  127 

Brazer  v.  Clark  417,  420,  426 

Brazier  v.  Camp  437  a 

Brock  V.  Cole  212 

Breckenridge  v.  Brooks  918 

V.  Ormsby  35,  189 

Brcdonburg  v.  Bardin  493 

I^redin  v.  Kingland  918 

Breed  v.  Breed  660,  661 

V.  Nat.  Bank  of  Auburn  815  c 

Breedon  v.  Breedon  582,  610,  793 

Bn>it  ?,'.  Yeaton  828 

Bremer  v.  Hadlcy  764 

Brenan  v.  Boyne  357 

Breudle  v.  German  Ref.  Con.   734,  74S 
Brennaman  v.  Schell  144,  147 

Brennan's  Estate  918 

Brcnnon's  Estate  710 

Brent  v.  Sandwich  734 

Brereton  v.  Brereton  507,  508, 

510,  511 
Bresee  v.  Bradfield  195,  198 

Bresnahan  v.  Sheehan  429 

Brest  V.  Offley  112 

Breton's  Estate,  In  re  96 

Brett  V.  Cumberland  536 

V.  Forcer  635 


Br(!tt  ?'.  Grccwell  636 

Brettcll,  Ex  parte  337 

Brevard  v.  Neely  602  e 

Brewer  v.  Boston  Theatre  242 

V.  Brewer  386  a,  555 

V.  Brown  322 

V.  Hardy  299 

V.  Swirlea  467,  669,  849 

V.  Vanardsdale  851 

V.  Winchester  602  h,  602  n 

Brewerton's  Case  693,  701 

Brewster  v.  Angel  288,  375,  767 

V.  McCall  748 

V.  Power  142 

V.  Striker  305,  308.  312,  315 

Brice  V.  Brice  189,  201 

V.  Stokes     416,  418,  419,  421,  424, 

466,  467,  508,  589,  849 

Brickell  v.  Earley  137 

Bride  v.  Smyth  312 

Bridenbecker  v.  Lowell  127,  135 

Bridge  v.  Beadon  438 

V.  Bridge         96,  98,  101,  102,  105, 

106,  487,  553,  554 

V.  Brown     477,  615,  618,  910,  913 

Bridger  v.  Exchange  Bank  223 

V.  Rice  770 

Bridgers  v.  Howell  149 

Bridges  v.  Longman  768 

V.  Pleasants         701,  713,  729,  748 

V.  Wilkins  646 

V.  Wood  648 

Bridget  v.  Himes  884 

Bridgman,  In  re  275,  279,  292 

V.  GiU  246,  745,  859,  888 

V.  Green  71,  104,  189,  211 

Brier,  In  re  404,  441 

Briers  v.  Hackney  851 

Briggs  V.  Davis  334 

V.  French  72 

V.  Hartley  700,  702,  718 

V.  Hill  238 

V.  Light-boats  40,  41 

V.  Oxford  396,  540 

V.  Palmer  334 

V.  Penny  93,  112 

V.  Planters'  Bank  238 

V.  Terrell  767 

V.  Titus  681 

V.  Wilson  481 

Briggs  and  Spicer,  In  re  586 

Brigham  v.  Brigham  Hospital  399, 

738 

V.  Henderson  72 

V.  Morgan  263,  266 

Bright  V.  Bright  109 

V.  Chapman  122,  646 

V.  Egerton  864 

V.  Knight  133 

V.  Larcher  570 

V.  Legerton  850 

V.  North  478,  915 

Brightwell  t'.  Jordan  815  b 

BrilUinrt  v.  Mish  920 

BriiK'kerhoff  v.  Lansing  602  ec 

Bringhurst  v.  Cuthbert  311 

Brinkerhoff  v   Vanschoven  232 

Brinkley  v.  Willis  863,  872 


xliv 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Brinley  v.  Grou  545 

Brinsden  v.  Williams  246,  813 

Brinton's  Estate  900 

Brisbane  v.  StouKhton         602  g,  602  bh 

Brisoo  V.  Minah  CM.  Co.  234 

Briscoe  v.  Briscoe  o61 

V.  Bronaugh  239 

V.  State  919 

Bristed  V.  Williams  242 

Bristol  V.  Hungerford  152 

V.  Whitton  737 

Bristow  V.  Bristow  699 

British  Museum  v.  White  704 

British  South  Africa  Co.  v.  Com- 

panhia  de  Mocambique  72 

Brittle,  In  re  671 

Brittlebank  v.  Goodwin  863 

Britton  V.  Lewis  199,  414,  768 

V.  Twining  358 

Broad,  In  re  511  h 

V.  Bevan  112 

Broadhurst  v.  Balguy       261,  417,  418, 

419,  463,  466,  508,  509,  851 

Broadrup  v.  Woodman  85 

Broadway  Nat'l  Bk.  v.  Adams       827  a 

Brock  V.  Barnes  202 

V.  Brock  79,  181,  226 

V.  Phillips  224 

Brockett  v.  Lewis  594 

Brocldebank  v.  Johnson  118 

Brocksopp  V.  Barnes  904,  906,  910 

Broder  v.  Conklin  195,  864 

Broderick  v.  Broderick  171 

Brodie  v.  Barry  665,  818 

V.  St.  Paul  747,  891,  892 

Brodley's  App.  927 

Brogden  v.  Walker  189 

Brokaw  v.  Brokaw  358,  881 

Brome  v.  Berkeley  578 

Bromfield,  Ex  parte  605,611 

V.  Wjrtherley  464 

Bromley  v.  Cleveland,  etc.  R.  Co.    464, 

828 

V.  Holland  873,  878 

V.  Kelley  460,  461,  467 

V.  Mitchell  97 

V.  Smith  885 

Brompton  v.  Barker  219 

Bronson  v.  Kinsie  602  c,  602  x 

V.  Strouse  706 

V.  Thompson  195,  198,  347, 

386,  920 

Brook  V.  Chappell  171,  181 

Brooke  v.  Berry  172,  187,  189,  206 

V.  Brooke       32,  112,  116,  248,  664 

V.  Bulkeley  217,  828 

V.  King  828 

V.  Turner  511  c 

Brooke's  App.  82 

Brooker  v.  Brooker  890 

Brookhouse  v.  Union  Pub.  Co.  222 

Brookings    Land    &    Tr.    Co.    v. 

Bertness  206 

Brookman  v.  Hales  157,  196 

Brooks  V.  Belfast  384,  399 

V.  Brooks  61,  843 

V.  Burt  878 

V.  Dent  127 


Brooks  V.  Egbert 

918  n 

V.  Fowle 

133 

V.  Hatch 

68 

V.  Jack.son 

919 

V.  Jones 

312 

V.  Mar  bury 

691,  593 

V.  Raynolds 

118,  386  a 

V.  Sawyer 

624 

V.  Union  Trust,  etc.  Co.     137,  162 

Brookshank  v.  Smith  857 

Broom  v.  Curry  540 

V.  Summers  734 

Broomfield,  Ex  parte  611 

Brophy  v.  Bellamy  612 

V.  Lawler  171 

BrosweU  v.  Downs  348 

Brothers  r.  Brothers  602  w 

V.  Porter  132,  136,  836 

Brotherton  v.  Hutt  222 

V.  Weatherby  75 

Brough  V.  Higgins  55.3 

Brougham  v.  Paulett  263,  908 

Broughton  v.  Brand  127 

V.  Broughton  432,  895,  904 

V.  James  662 

V.  Langley  298 

Browell  v.  Reid  273,  818,  819 

Browers  v.  Fromm  748 

Brown,  Ex  parte  282 

In  re             498,  701,  730,  733,  773 

V.  Alden  668 

V.  Armistead  184,  500 

V.  Bamford  670 

V.  Bartie  602  i,  602  aa,  602  bb 

V.  Berry  639 

V.  Black  246  o 

V.  Blount  883 

V.  Bontee  347 

V.  Bradford  96 

V.  Brown  77,  83,  93,  212,  277, 

287,  315,  368,  646,  668,  672,  682 

V.  Bryant  368 

V.  Budd  28 

V.  Campbell  465 

V.  Carter  201 

V.  Casamajor  117,  612,  620 

V.  Cave  133 

V.  Cavendish  98,  104,  593 

V.  Chambers  511  5 

V.  Cheney  126 

V.  Cherry  874 

V.  Clark       632,  633,  634,  636,  649, 

673 

V.  Columbia  Finance,  etc.  Co.  383, 

.39 1   392 

V.  Concord  724,'  748 

V.  Condit  726,  728 

V.  Cowell  195 

V.  Crafts  97 

V.  Cross  467,  850,  869 

V.  De  Tastet        430,  454,  470,  906 

V.  Dewey  226 

t.  Dimbleby  671 

V.  Doherty  858 

T.  Dysinger  215 

V.  East  231 

V.  Elton  627 

V.  French  456 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


xlv 


Brown  v.  Gellaty 

548,  531 

V.  Giliuan 

237 

ji.  Groom  bridge 

908 

V.  Guthrie 

141 

V.  Heiithcote 

239 

V.  Hicks 

556  a 

V.  Higgs        68.  112,  160,  248,  249, 
251,  256,  257,  258,  272,  507, 
508,  714 
V.  Hobson  499,  500 

V.  How  900 

V.  Hummell  742 

V.  Ingham  184 

V.  Johnson  648 

V.  Jones  151,  157,  158 

V.  Kelsey  263,  574,  748 

V.  Kemmerer  855 

7).  Kemper  675 

V.  Kennedy  202 

V.  Knox  692 

r.  Lake  670 

V.  Lambert's  Adm'rs  846 

V.  Lamphear  186 

V.  Litton  457,  464,  906 

V.  Lockhart  880,  891,  892,  900 

V.  Lutheran  Church  734 

V.  Lynch  215 

V.  Lyon  592 

V.  McGiU  96,  386  o,  670,  671, 

815  a,  827  a 
V.  Meeting  St.  Baptist  Soc.      737, 
743 
V.  Meigs  254,  498,  511  a 

V.  Mercantile  Trust  Co.       97,  104 
V.  Miller  520 

V.  Minturn  593 

V.  Oakshott  823 

V.  Parker  594 

t).  Paull  118,612,620 

r.  Petney  137 

V.  Pocock  250,  261,  252,  258, 

652,  671 
V.  Postall  661 

t!.  Pring  185 

V.  Quintard  391 

V.  Ramsden  305 

V.  Reeder  312,  320 

V.  Ricketts  429.  464,  468 

V.  Sansome  468,  472 

V.  Selw\'n  244 

V.  Smith  613,  614,  615 

V.  Southhouse  464,  472 

V.  Spohr  97,  104 

V.  Stead  347 

V.  Stoughton  160,  393 

V.  Strother  252 

V.  Temperly  616 

V.  Vanlier  232,  239 

V.  Wadsworth  299,  358 

V.  Whitcway  309,  312 

V.  Williamson  386  a 

V.  Wittner  437  a 

V.  Wood  218 

V.  Wright  381,  392,  397,  455, 

456,  459,  843 
V.  Yeall  713,  719 

Brown's  Assigned  Estate  598 

Case  610 


Brown's  Estate  554 

Trusts  438 

Will,  Re  119 

Brown  &  Co.,  In  re  828,  844 

Brown  &  Larned,  Petitioners  545 

Brown  Banking  Co.  v.  Stockton       448 

Browne  v.  C'oUins  550 

V.  Stamp  137 

Brownell  v.  Anthony  544,  545 

V.  Briggs  213 

V.  Downs  259 

Browning  v.  Hart  590 

V.  Headley  627,  632,  633,  636, 

639 

V.  Stiles  766,  800 

Bruce  i'.  Central  M.  E.  Church        747 

V.  Child  229,  230 

V.  Presbyterj-,  &c.  698.  709 

V.  Roney  126.  135 

11.  Ruler  179 

Bruch  V.  Lantz           195.  205.  428,  598, 

795,  853 

Brudenell  v.  Boughton  92,  570 

Bruen  v.  Gillet  415,  416 

V.  Hone  855 

Bruere  v.  Cook  46,  730,  731 

Bruin  v.  Knott  613,  615 

Brumfield  v.  Palmer  238,  239 

Brummell  v.  McPherson  61 

Brumridge  v.  Brumridge  417 

Brundage  v.  Chencworth  96 

Brundy  v.  Mayfield  129,  133,  210 

Brune  v.  Martyn  519 

Bruner  v.  First  Nat.  Bank  122 

Brunnenmayer  v.  Buhre  732,  742 

Brunsden  v.  Wooldredge  256,  256,  699 

Brunsen  v.  Hunter  112,  115 

Brush  V.  Kinsley  238 

r.  Ware  224 

Bryan  r.  Bigelow  93,  97,  159 

V.  Bradley  299 

V.  Bryan  627 

V.  Collins  393 

V.  Duncan  195,  649 

V.  Howland  82 

V.  McNaughton  206 

V.  Weems  312 

Bryant,  In  re  248,  511,  612 

I'.  Craige  471 

I'.  Hendricks  137,  226 

V.  Main  223 

V.  Mansfield  165 

V.  Russell  594,  660.  914 

Brydges  v.  Brydges  357,  358,  540 

V.  Wotton  272 

Bryon  v.  Metropolitan,  &c.  Co.        752 

Bryson  v.  Nichols  160 

V.  Wood  594 

Buchanan  v.  Deshon  55 

V.  Hamilton  30,  275,  282,  283 

V.  Harrison  13,  347 

V.  Hart  766 

V.  Matlock  183 

V.  Monroe  602  h 

Buck,  In  re  705,  710,  728 

I'.  Gibson  784 

V.  Paine  127 

V.  Pike  126,  133,  137 


xlvi 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Buck  V.  Swazey 

132,  244 

V.  Uhrich 

127 

V.  Voreis 

212 

V.  Warren 

132 

Buckels  V.  Carter 

891 

Buckeridge  v.  Glasse 

260. 

275,  467. 

835.  849.  851 

Buckford  v.  Wade  141 

Buckliam  v.  Smith  910 

Buckingham  v.  Clark  171.  181 

V.  Morrison  548 

Buckinghamshire  v.  Drury  34,  53 

V.  Hobart  348 

Buckland  v.  Pocknell  235,  238 

Buckles  V.  Lafferty  205 

Buckley  v.  Buckley  670 

V.  Frasier  371 

V.  Howell  774 

V.  Lanauze  196 

».  WeUs  678 

Bucklin  v.  Bucklin  341 

Buckner  v.  Calcott  863 

Budd  V.  Basti  232 

V.  Hiler  275 

V.  State  380 

Budge  V.  Gummon  458 

Budgett  V.  Budgett  401,  910 

Buel  V.  Buckingham  195 

V.  Yelverton  272 

Buffalo  R.  R.  Co.  v.  Lamson   127,  142. 

207   759 

Buffalow  V.  Buffalow  189,  194!  203 

Buffington  v.  Maxam  112,  152 

Buford  V.  CaldweU  172 

V.  M'Kee  109 

Bugbee  v.  Sargent  790 

Bugden  v.  Tylee  822 

Bugg  V.  Franklin  638 

Buggins  V.  Yates         112,  113.  116.  151 

Bulby.  Ex  parte  651 

Bulkeley  v.  Worthington  Ecc.  Soc.  544. 

545 

Bulkley  v.  De  Peyster  259 

V.  Redmond  183 

V.  Staats  815  b 

V.  Wilford     171.  178,  181.  182.  195 

Bull.  In  matter  of  499.  610 

V.  Bull         112,  251,  254.  255,  559. 

748 

V.  Kentucky  Nat.  Bank  388 

V.  Vardy  116,  248,  252 

Bullard  v.  Chandler  262,  710,  732 

Bullin  V.  Dillage  686 

Bullock,  Re  386  b,  388 

V.  Knight  633 

V.  Menzies  634 

V.  Sadlicr  220 

V.  Stones  379,  616,  622 

Bullowa  V.  Orgo  243 

Bulpin  V.  Clark  652,  657 

Bumgarner  v.  Coggswell  412,  501 

Bump  V.  Pratt  96 

Bumpus  V.  Platner  218 

Bunbury  v.  Bunbury  71,  72 

Bunce  v.  Reed  602  r,  602  s,  602  t, 

602  » 

Bundy  v.  Bundy  38 

V.  Monticello  828 


Bunn  V.  Winthrop       98,  103,  104,  109, 
162,  367 

Bunnell  v.  Savings  Soc.  122 

Bunner  v.  Storm  511,  783 

Bunnett  v.  Foster  885 
Bunten  v.  Am.  Security,  etc.  Co.      104 

Buntin  v.  French  232,  237 

Burbach  v.  Burbach  59,  305.  347, 

448 

Burbank  v.  Burbank  732.  742 

V.  Whitney  46.  724,  748 

Buxch  V.  Breckenridge  659.  660 

Burchett  v.  Durdant  306 

Burden  v.  Burden  904,  906 

V.  Sheridan  135,  206 

Burdett  v.  Spilsbury  511  6 

V.  Willet  835 

Burdick  v.  Garrick  468,  471 

V.  Goddard  282,  503 

Burdon  v.  Burdon  665 

V.  Dean  632,  633,  635 

Buren  v.  Buren  127 

Burge  V.  Brutton  432.  910 

V.  Fidelity  Trust,  etc.  Co.  764 

Burger  v.  Duff  402 

V.  Potter  237 

Burges  v.  Lamb  540,  776 

Burgess  v.  Burgess  272 

V.  Fairbanks  238 

V.  Knapp  763 

V.  Smith  72 

V.  Wheate  8,  15,  40,  64,  217.  232, 

248.  301,  321,  323,  325, 

327,  357,  427.  434.  747. 

828.  891 

Burgoyne  v.  Fox  577,  785 

Burham  v.  James  863 

Burke  v.  Adair  770 

V.  Chrisman  238 

V.  Gray  237 

V.  Jones  600,  601 

V.  Maguire  264.  269 

V.  Roper  710 

V.  Tuite  658 

V.  Turner  612 

V.  Valentine  119.  308 

Burkett  v.  Whittemore  511  c 

Burleigh  v.  Clough  316 

Burleson  v.  McDermott  223 

Burley,  In  re  112 

V.  Russell  170 

Burling  v.  Newlands  82 

Burlingame  v.  Bobbins  239 

Burlington  Uni.  v.  Barrett  90 

Burmester  v.  Norris  486 

Burn  V.  Carv-alho  68.  105 

Burnes  v.  Burnes  112.  115 

Burnet  v.  Brundage  782 

Burnett  v.  Campbell  Co.  137 

V.  Davis  647 

V.  Denniston      602  q,  602  x.  602  bb 

V.  Kinnaston  641 

V.  Preston  17 

Burney  v.  Atkinson  476  a,  910 

V.  McDonald  64 

V.  Spear  918 

Burnham  v.  Barth  828 

V.  Bennett  639 


INDEX    TO    CASES    CITED. 
JReferences  are  to  sections.] 


xlvii 


Burnham  v.  Dalling  900 

V.  White  766 

Petition  of  732,  748 

Burnly  v.  Evelyn  385 

Burns  v.  Allen  670 

r.  Ford  929 

V.  Taylor  235 

Burnsidc  v.  Merrick  322 

V.  Wayman  95 

Burr  V.  McEwen     526,  627,  780,  894, 

910 

V.  Sherwood  640 

V.  Sims  308,  499,  769 

V.  Smith       701,  724,  729,  730,  748 

Burr's  Ex'r  694 

Burrage,  In  re  248,  510.  511 

Burrill  v.  Boardman  382,  730,  732, 

748 
V.  Sheil     411,  413,  417,  420,  460, 

466 

Burritt  v.  Silliman  259 

Burrough  v.  Philcox  248,  250,  251, 

258 

Burroughs  v.  De  Couta  104 

Burrows  v.  Alter  696 

V.  Gore  863 

V.  Greenwood  900 

V.  Locke  171 

V.  Ragland  182 

V.  Walls  467,  851 

V.  Williamc  821 

Burson'a  Appeal  676 

Burt  V.  Dennett  877 

V.  Freeman  800 

V.  Herron  119 

V.  Sturt  397,  584 

Burting  v.  Stonard  809,  815 

Burton,  Ex  parte  246,  848 

V.  Bridgeport  Sav.  Bank       82,  96 

D.Cook  119 

V.  Hastings  361 

V.  Mount  460,  451 

V.  Pierpont  647 

V.  Wookey  904 

Burton's  Appeal  737 

Burtt  V.  Wilson  232 

Burtt's  Est.,  Re  340,  495 

Bury  V.  Oppenheim  188,  201 

Bush  V.  Allen  310 

V.  Bush       219,  221,  764,  836,  877 

V.  Marshall  232 

V.  Shearman  197 

V.  Stamps  602  p 

V.  Stanley  126 

V.  Webster  195,  428 

Bush's  Appeal  299,  901 

Bushbv  V.  Munday  72 

BushelU'.  Bushell  5116 

Bushnell  v.  Parsons  118 

Bushong  V.  Taylor        437  a,  766,  815  6 

Bust  V.  Wilson  162 

Butcher  v.  Johnson  509  a 

V.  Musgrove  69 

Butcher,  Ex  parte  332 

Butler,  In  re  560 

V.  Bray  414,  505 

V.  Butler     282,  328,  460,  647,  875, 

886 


er  t'.  Carpenter 

133 

V.  Carter 

863 

V.  DuDcomb 

578,  679,  768 

V.  Gazzam 

788 

V.  Godley 

347 

V.  Haskell 

187 

V.  Hildreth 

596 

V.  Hyland 

863 

V.  Ladue 

602  gg 

V.  Merchants'  Ins.  Co.        58,  143, 

146,  147 

V.  Portarlington  82 

V.  Prendcrgast  873,  878 

V.  Robertson  680 

V.  Rutledge  133 

V.  Taggart's  Trustee  287 

V.  Topkis  484 

V.  Van  Wyck  691 

Butler  &  Baker's  Case  270 

Butman  v.  Whipple  196 

Buttanshaw  v.  Martin  620 

Butterbaugh's  App.  664 

Butterfield,  Re  99 

V.  Butterfield  133 

V.  Nogales  Copper  Co.  181 

V.  Reed  383 

Buttles  V.  De  Baun  864,  866 

Button  V.  Hemmens  603 

Buttrick  v.  Holden  814 

Butts  V.  Cooper  134,  206 

V.  W^ood  207 

Buxton  V.  Buxton  439 

Byam  v.  Byam     294,  364, 603, 606,  807 

Byant  v.  Pickett  918 

Bybee  v.  Thorp  618 

Byers  v.  Danley  139 

V.  Ferner  127,  133,  137,  141 

V.  McEniry  86,  134 

V.  Wackman  137 

Byington  v.  Moore  206 

Byne  v.  Blackburn  113,  117,  612 

Byrchall  v.  Bradford         263,  462,  469, 

574,  844,  849 

Byrd  v.  Bradley  590 

Byrne  v.  Frere  857,  861,  867 

Byrne  v.  Gunning  305,  311 

V.  Jones  195 

V.  McGrath  429,  815  b,  828 

V.  Norcott  463,  472,  900 

V.  Van  Hoesen  608 

Byron  v.  Rayner  199 

Byron  Reed  Co.  v.  Klabunde  764 


Cadbury  v.  Duvall     669, 
Cade  V.  Da^n8 
Cadell  1'.  Palmer 

V.  Wilcocks 
Cadematori  r.  Ganger 
Cadman  v.  Horner 
Cadogan  r.  Essex 

V.  Ewart 

V.  Kennett 
Cadwalader's  App. 
Cadwoll's  Bank,  Re 
Cafe  r.  Bent       293,  294, 


698,  795,  797 

127 

379,  380 

611b 

656 

176 

460 

308,  315,  499 

542 

195,  774 

901 

450,  474.  508 


xlviii 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Caffey  v.  McMichael  618 

Caffrey  v.  Darby        438,  847,  900,  910 

Cage  V.  Cassidy  72 

Cagwin  v.  Buerkle  152,  159 

CahiU  V.  Scitz  223 

Cahoun  i.'.  Robinson  232 

Cain  V.  Cox  76 

Cairns  v.  Chaubert  547,  554,  918 

V.  Colburn  147 

V.  Grant  136 

Calais  Steamboat  Co.  v.  Van  Pelt    814 

Caldecott  v.  Brown  475,  477,  540, 

646,  552,  913 

V.  Caldecott  551 

Calder  v.  Moran  79,  86 

CaldweU  v.  Boyd  386  a 

V.  Brown  437  a,  783 

V.  Caldwell  137 

V.  Carrington  217 

V.  Chapline  602  dd 

V.  Lowden  328 

V.  WUliams  97,  109,  111,  591 

Caldwell's  Adm'r  v.  Hampton  863 

CaldweU's  Bank,  Re  910 

Calhoun  v.  Burnett  223,  843 

V.  Calhoun  655 

V.  Ferguson  546,  547 

V.  King  818 

Calkins  v.  Isbell  602  bb,  602  ff 

V.  Lockwood  68 

V.  Long  672 

Call  V.  Ewing  421 

V.  Gibbons  188 

Callaghan  v.  Hall  891,  918 

Callahan  v.  Patterson  675 

Callender  v.  Calgrove  230 

V.  Keystone  891 

Callis  V.  Folsom  863 

Callow  V.  Howie  664,  657,  659 

Calloway  v.  Hubner  770 

V.  Wetherspoon  191 

Calmes,  Ex  parte  458 

Calverlev's  Settled  Estates,  In  re    477 

Calvert  v.  Eden  299 

V.  Godfrey  605 

Calvin  v.  Currier  677 

Calwell's  Ex'r  v.  Prindle's  Adm'r     476 

Cambridge  v.  Rous  160 

Camden  v.  Anderson  131 

V.  Bennett  132,  144 

V.  Benson  118 

V.  VaU  237,  685 

Camden  Land  Co.  v.  Lewis      206,  836, 

837 
Camden  Safe  Dep.  &  T.  Co.  v.  Ing- 
ham 612 
Cameron  v.  Crowley  253 
V.  Irwin                             602  t,  602  x 
V.  Mason  232 
V.  Nelson  79 
Cameron  and  Wells,  Re              110,  367 
Campan  v.  Cam  pan                           247  a 
Campbell  v.  Baldwin                  232,  237 
V.  Barber                                       815  b 
V.  Boggs                                           863 
V.  Campbell                 129,  228,  441, 
456,  554,  905 
V.  Carter                                         184 


Campbell  v.  Clough 

262 

V.  Day 

438 

V.  Dearborn 

76, 

226,  602  b 

V.  Drake 

128.  135 

I'.  Foster 

386  a 

V.  French 

630 

V.  Graham 

869 

V.  Hamilton 

330 

V.  Harding 

380 

V.  Hooper 

35 

V.  Home       476  a, 

611  a 

,  901,  922. 

928 

V.  Johnston  195,  205,  786 

V.  Leach  530 

V.  McLain  209,  851 

V.  Miller  456,  914 

V.  Moulton  210 

V.  Noble  162 

V.  Prestona  321,  329 

V.  Radner  741 

V.  Sheldon  93 

V.  SidweU  232,  239 

V.  Walker     128,  196,  197,  770,  869 
V.  Wallace  93 

V.  Williams  468 

Campbell's  Estate  109,  391 

Trusts,  In  re  51 

Campbell-Kawannanakoa  v.  Camp- 
bell 391 
Campden's  Charities,  Re  728 
Canal  Bank  v.  Cox  591,  592 
Canby  v.  Lawson  367 
Candler  v.  Tillett      419,  421,  422,  424, 

440 

Candv  v.  Marcy  186 

Cane  v.  Allen  197,  202 

V.  Roberts  437 

Caney  v.  Bond  438,  440 

Canfield  v.  Bostwick  570,  918 

V.  Canfield  448 

Cann  v.  Cann  185 

Cannel  v.  Buckle  34 

Canning  v.  Kensworthy  122 

Cannings  v.  Flower  616,  619 

V.  Hicks  13 

Cannon  v.  Handley  171 

V.  Robinson  815  b 

Canoy  v.  Troutman  17,  328,  334 

Cantley,  In  re  338 

Cape  V.  Bent      284,  293,  294,  450,  474, 

508 
V.  Cape  118,  647,  649 

V.  Plymouth  Church  328,  330 

Capehart  v.  Huey  891,  894 

Capel  V.  Wood  533 

Caperton  v.  Callson  891 

Caple  V.  McCoUum  126 

Caplin's  Will  510 

Caplingor  v.  Stokes  127.  200 

V.  Sullivan  633 

Capron  v.  Attleborough  Bank  199 

Carberry  v.  Ennis  448 

Cardiff  v.  Marquis  181 

Cardigan  v.  Montague  530 

Care  v.  Ormond  821 

Carew  v.  Johnson  904 

Carew's  Case  178.  179 

Carey  v.  Brown  815  c 


INDEX    TO    CASES    CITED. 
[References  are  to  sectioos.] 


xiix 


Carey  v.  Callan 

137 

Carroll  County  Academ 

y  V.  Galla- 

V.  Goodinge 

244 

tin 

744 

V.  Kemper 

815  6 

Carron  Iron  Co.  v.  Maclaren               72 

V.  Mackey 

673 

Carruth  v.  Carruth 

264 

V.  Rawson 

226 

Carruthcrs  v.  Carruthera 

404 

Carleton  v.  Bank 

627, 

62H 

Carsey  v.  Barshaw 

416 

V.  Dorset 

213 

Carson  v.  Carson        66, 

250,  254.  262, 

Carley  v.  Graves 

828 

511 

Carmiehael  v.  Foster 

828 

V.  Murray 

672,  673 

V.  Hughes 

615 

V.  O'Bannon 

644 

V.  Trustees 

43 

Carter  v.  Abshire 

774 

V.  Wilson 

615, 

618 

V.  Balfour 

670.  724.  726. 

Carne  v.  Long 

704, 

712 

730.  748 

Games  v.  Col  burn 

162 

V.  Bank  of  Georgia 

239 

V.  Hubbard 

239 

V.  Beimett 

863 

V.  Polk 

783,  786  a 

V.  Bernadiston 

317 

Carney  v.  Byron 

307 

V.  Carter     137,  218, 

223,  261.  262, 

ti.  Kain 

312, 

920 

627,  628, 

633,  672.  673, 

Carow  V.  Mowatt 

891 

676.  829 

Carpenter,  Re 

282, 

284 

V.  Cutting 

424.  462.  468 

V.  Am.  Ins.  Co. 

171 

V.  Dotson 

171.  172.  206 

V.  Browning 

310.  677 

920 

V.  Gibson                   82,  83,  217,  828 

V.  Cameron 

765 

V.  Home 

428.  431 

V.  Canal  Co. 

230 

863 

V.  McManus 

204 

V.  Carpenter 

441 

914 

II.  McNcal 

38.  95.  240 

V.  Cook 

99 

V.  Montgomery 

357 

V.  Elliott 

192 

V.  Rolland 

618 

V.  Heriot 

201 

V.  Taggart 

645 

V.  Leonard 

680 

V.  Uhlein 

855.  863,  864 

V.  Marnell 

58 

V.  Whitcomb 

705.  710 

V.  Miller 

748 

V.  Wolf 

748 

V.  Mitchell 

686 

Carter  and  Kenderdine' 

8  Contract. 

Carpenter's  Appeal 

900 

In  re 

586 

Estate 

181 

Carter  Bros.  v.  Challen 

126,  815  c 

Carr,  Ex  parte 

171 

Carteret  v.  Carteret 

351 

V.  Atkinson 

254 

Cartlcdge  v.  Cutliff 

471 

V.  Bedford 

256 

510 

Cartmcll  v.  Perkins 

863 

V.  Bob 

863 

Cartwright,  In  re 

477,  540,  552 

V.  Burlington 

685,  597 

600 

V.  Pettus 

72 

V.  Craig                 171 

206,  863 

865 

V.  Wise 

143,  144,  147 

V.  Eastabrook 

633 

Caruthers  v.  Williams 

133 

V.  Ellison 

326 

Carver  r.  Bowles 

511  a 

V.  Erroll 

373 

V.  Richards 

511  a,  808 

V.  Graham 

172 

Carvill  v.  CarvUl 

121 

V.  Halliday 

35 

Carwardine  v.  Carwardine         298,  379 

V.  Hertz 

411 

Gary  v.  Abbott 

718.  724.  729 

V.  Hilton 

226,  814 

861 

V.  Cary 

112. 116 

V.  Hobbs 

232 

V.  Eyre 

217 

V.  Houser 

209 

V.  Mansfield 

200 

V.  Laird 

468 

V.  Slead 

677.  920 

V.  Living 

117 

118 

V.  Whitney 

328 

V.  Richardson 

299 

302 

Cary  Librarj-  v.  Bliss 

700 

V.  Taylor 

632,  635 

640 

Casaday  v.  Bosler 

602  e« 

Carrick  i'.  Errington 

160 

Casainajor  v.  Strode 

548.  551 

Carrier's  Appeal 

918  ?i 

Casljorn  v.  English 

322 

Carrigan  v.  Drake 

305 

Casborne  v.  Scarfe 

324.  336 

Carrington  v.  Abbott 

559 

Casburne  v.  Casburne 

323 

V.  Goddin 

602  aa 

Case  V.  Carroll 

202  6 

Carroll  v.  Adams 

112 

V.  Codding 

126.  132 

V.  Connett 

880 

V.  Gerrish 

212.  591 

V.  Farmers'  Bank 

72 

V.  James 

217 

V.  Lee 

647 

V.  Kelly 

915  a 

V.  Moore 

918 

Casey  v.  Wiggin 

640 

V.  Renick 

361 

Casey's  Estate 

891 

V.  Shea 

252 

Casgrain  v.  Hammond 

391 

V.  Smith 

104 

Caspari  v.  Cutcheon 

460 

V.  Stewart 

601 

C^assady  i'.  Wallace 

602  o 

V.  Van  Renselaer 

232 

Cassamajor  v.  Pearson 

550 

VOL.   I.  — d 

INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Cassard  v.  Hinman 
Cassell,  Ex  parte 

V.  Ryss 
Cassell's  Appeal 
Casselman  v.  McCooley 


Cassels  v.  Finn 
Cassidy  v.  Hynton 

V.  McDaniel 
Casteel  v.  Flint 
Castle  V.  Castle 
Castree  v.  Shotwell 
Cater  v.  Eveleigh 
Cater's  Trust 
Cathcart  v.  Nelson 
Cathorpe,  Ex  parte 
Catlin  V.  Eagle  Bank 
Caton  V.  Caton 

V.  Pembroke 

V.  Rideout 
Catt  V.  Catt 
Cattlin  V.  Brown 
Caulfield  v.  Maguire 
Cavagnaro  v.  Don 
Cave  V.  Cave 
Cavender  v.  Cavender 
Cavendish  v.  Fleming 

V.  Mercer 
Caverly  v.  Philp 
Cavin  v.  Gleason 
Cawood  V.  Thompson 
Caylor  v.  Cooper 
Cecil  V.  Butcher 


172 

910,  914 

782,  783 

748 

260,  264, 

493,  766 

181 

507 

881 

82,  96 

118,  620 

386  a,  815  a 

661,  675 

922,  925 

82 

457 

31,  688 

208 

239,  837 

665 

729,  730,  748 

385 

554 

129 

34 

275 

918 

616,  619 

873 

828 

159 

886 


103,  104,  105,  161, 
162,  165 

V.  Henry  235 

Cecil  Bank  v.  Snively  126 

Cecil's  Trustee  v.  Robertson         386  a, 
388,  815  a 
Central  Bridge  v.  Baily  754 

Central  Stock,  etc.  Exch.  v.  Bend- 

inger  815  c 

Central  Trust  Co.  v.  Egleston    99,  377 
V.  Johnson 
V.  West  India  Imp.  Co. 


Chace  v.  Chapin 

Chadwick  v.  Arnold 
'0.  Chadwick 
V.  Heatley 

Chadwin,  Ex  parte 

Chaffees  v.  Risk 

Chahoon  v.  HoUenback 

Chaigneau  v.  Bryan 

Chaires  v.  Brady 

Chalfant  v.  Williams 

Chalinder  &  Herington,  In  re 

Challen  v.  Shippam 

Chalmers  v.  Bradley        228,  230,  274, 

287,  401,  863,  867 

V.  Hack  72 

Chamberlain  v.  Agar  84,  181,  216 

V.  Brackett  728,  737 

V.  Chamberlain    181,  182,  741,748 
V.  Crane  299 

V.  Dummer  540 

V.  Maynes  328 

V.  Stearns  711,  712 

V.  Taylor  765 


918 
438, 

831,  926 
815  c 

171,  206 
82 

922,  925 
574 
589 
330 
260 
187 
226 
904 

462,  463 


Chamberlain  v.  Temple  165 

V.  Thompson       305,  312,  315,  318 
Chambers,  Ex  parte  616,  617,  618 

V.  Atkins  117 

V.  Caulfield  672 

V.  Chambers  362,  451,  856 

V.  Crabbe  851 

V.  Emery  137 

V.  Goldwin  616 

V.  Goodwin  905 

V.  Howell  430 

V.  Kerns  462 

V.  Manchester,  &c.  Ry.  752 

V.  Mauldin  330 

V.  Michael  144 

V.  Minchin  402,  404,  411,  416, 

419,  421,  423 
V.  Perry  631 

V.  St.  Louis  694,  699,  724 

V.  Smith  386  b 

V.  Taylor  312 

Chambersburg  Ins.  Co.  v.  Smith      520 
Chamness  v.  Crutchfield  226 

Champion,  In  re  217,  828 

V.  Brown  232,  239 

V.  Rigby  202,  228,  229 

V.  Smith  699 

Champhn  v.  Champlin       126,  672,  783 
V.  Haight  810 

V.  Lay  tin  171 

Chance  v.  McWharter  232,  239 

Chancellor,  In  re  511,  548 

V.  Windham  299 

Chandler,  In  re  846 

V.  Hill  600 

Chandos  v.  Brownlow  230 

V.  Talbot  641 

Chanet  v.  Villeponteaux  499 

Chancy  v.  May  885 

V.  Smallwood  245 

Chantland  v.  Bank  126,  142 

Chantler  v.  Hubbell  212 

Chapin  v.  First  Univ.  Soc.  412 

V.  School  District  45,  730,  744,  748 
V.  Universalist  Society  17,  299, 
305,  328 
V.  Vermont,  &c.  Railway  758,  761 
V.  Weed  209 

petitioner  448,  449 

Chaplin,  Ex  parte  461 


V.  Chaplin 
V.  Givens 
V.  McAfee 
V.  Moore 
V.  Young 

Chapman,  In  re 
V.  Beardsley 
V.  Blissett 
V.  Butler 
V.  Chapman 
V.  Cheney 
V.  Foster 
V.  Gibson 
V.  Gray 
V.  Hughes 
V.  Tanner 
V.  Wilbur 

Chappell  V.  Clarke 


151,  165,  323 

261,  262,  264,  268,  914 

126 

612 

430 

440,  466,  816  h,  900 

232,  235 

298,  305,  312 

855 

419,  815 r 

377 

686 

108 

672 

222,  815  c,  828 

232,  239 

77 

282 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


li 


Charity  Corp.  v.  Sutton     402,  879,  904 
Charles  v.  Burke  104 

V.  Dubois  428 

Charles  Green  R.  E.  Co.  v.  Building 

Co.  602  m 

Charlton  ».  Durham  421 

V.  Low  218 

V.  Kendall  375 

Charter  v.  Trcvelyan  923 

Chase  v.  Chapin  86,  99 

V.  Chase  70,  71,  112,  117,  118, 

386  a,  623 

V.  Darby  556 

V.  Lockerman     243,  462,  468,  562, 

565,  566,  571,  918 

V.  Palmer  627 

V.  Parker  602  ff 

V.  Roberts  843 

V.  Stockett  93,  159 

V.  Van  Meter  347 

V.  York  Bank  815  a 

Chassaing  v.  Parsonage  636 

Chastain  v.  Smith  127,  206 

Chasteauneuf  v.  Capeyron  67 

Chastian  v.  Hames  235 

Chatham  v.  Audley  905 

V.  Brainard  748 

Chattanooga,  &c.  R.  Co.  v.  Evans     242 

Chauncy  v.  Graydon  515 

Chauvete  v.  Mason  678 

Chaves  v.  Lucero  122,  800 

Chawner's  Will,  In  re  768 

Cheatham  v.  Rowland  477 

Chedworth  v.  Edwards  446,  835, 

837,  863 

Cheek  v.  Watson  171 

Cheever  v.  Wilson  684 

CMiclmsford's  Case  694 

Chenery  v.  Davis  440 

Cheney  v.  Watkins  299 

Cheney's  Case  701 

Cheney's  Ex'r  v.  Stafford  252 

Chcrbonnier  v.  Bussey  388 

Cherry  v.  Greene  764,  766,  795 

V.  Jarratt  918 

V.  Mott  724,  726 

Chertsey  Market,  In  re  419,  742,  745, 

770,  816,  848,  849,875 

Cheshire  v.  Cheshire  644,  836 

V.  Payne  213 

Chesley  v.  Chesley  770 

Chesson  v.  Chesson  554 

Chester  v.  Grier  199 

V.  Pratt  658 

V.  Rolfe  480,  487,  915 

Chesterfield  v.  Janssen      167,  169,  171, 

185.  187,  189,  194, 

195.  212,  851 

Chestnut  St.  Nat.  Bank  i-.  Fidelity 

Ins.  Co.  104 

Cheston  v.  Cheston  112,  119 

Chetwynd's  Settlement,  In  re  286 

Chew  V.  Beall  660 

V.  Chew  308,  511 

Chew's  Appeal  827 

Cheynev  v.  Gcarv  827  a 

Chibnal  v.  Whitton  993 

Chicago,  &c.  R.  Co.  v.  Hay  863 


Chicago,  &c.  R.  Co.  v.  Titterington    861 
Chicago,  &c.  Land  Co.  v.  Peck 

482, 520 
Chicago.  B.  &  Q.  R.  Co.  v.  First 

Nat.  Bank  126,  137 

Chicago  Term.  R.  Co.  v.  Winslow    305 

Chickering,  In  re  760 

Chidgey  v.  Harris  261 

Chilcott  V.  Hart  380,  392 

Child  V.  Bruce  195 

V.  Child  453,  667 

V.  Gibson  464 

V.  Stephens  596,  597 

Childers  v.  Childers  76,  82,  84. 

131,  151,  165,  226 

ChUds  V.  Gramold  137 

V.  Jordon  86,  343 

V.  Wesleyan  Cem.  Ass'n  77 

V.  Woodson  75 

Chillingworth  v.  Chambers        467,  848 

Chilton  V.  Braiden  232 

Chilvers  v.  Race  82,  96,  103,  477 

Chion,  Ex  parte  835 

Chipchase  v.  Simpson  649,  651 

Chippendale,  Ex  parte       486,  907,  909 

Chisholm  v.  Chisholm  615,  616 

V.  Gadsden  171 

V.  Newton  330 

Chisholm's  Settlement,  In  re    248,  264 
Chism  V.  Williams  380 

Chisolm  V.  Hamersley  894 

Chittenden  v.  Witbeck  196,  538 

Chitwood  V.  Brittain  84 

Choice  V.  Marshall  369 

Cholmeley  v.  Paxton  774,  776 

Cholmondeley  v.  Cholmondeley        112 
V.  CHnton  228,  855,  856,  857, 

865,  867 
Chorrmann  v.  Bachmann  195,  197 

Chowning  v.  Cox  602  dd 

Chrichton's  Trust  927 

Christ's  Church,  In  re  742 

V.  Trustees  736 

Christ's  Coll.,  Cambridge  700,  739 

Christ's  Hospital  v.  Budgin      144,  149, 

151 
V.  Diffenbach  220 

V.  Grainger  23,  384,  736 

V.  Hames  739 

Christian  v.  Foster  903  a 

V.  Highlands  82.  83 

V.  Yancey  261,  602  aa 

Christian   Church  v.   Church  of 

Christ  733 

Chri.stio  r.  Bishop  221 

Chri.stlor  V.  Meddis  499 

Christopher  v.  Covington  590,  591 

Christophers  v.  White  432,  904 

Christy  r.  Courtnay  143,  146,  147 

V.  Flcmington  601 

V.  Pulliam  254 

Church  V.  Att'y.-Gen.  865 

V.  Church  748 

V.  Cole  126 

V.  Jaques  27 

V.  Marine  Ins.  Co.  206 

V.  Ruland  171,  181,  182,  222 


m 


INDEX    TO    CASES    CITED. 
(References  are  to  sections.] 


Church  V.  Sterling  127 

V.  Stewart  328 

V.  Winton  195,  855 

V.  Wood  127 

Church  of  Christ  v.  Reorg.  Ch.         745 

Church   of   Donington-on-Baine, 

In  re  701 

Church  of  Latter  Day  Saints    v. 

United  States  711,  728 

Church  on  Brattle  St.  v.  Grant         736 

Churchill  v.  Churchill  254 

V.  Corker  320 

V.  Dibben  664 

V.  Hobson  261,  402,  411,  416, 

421 

V.  Marks  388,  555 

Chwatal  v.  Schreiner  251,  371 

C.  I.  &  B.  Co.  V.  Humphries  769 

Citizens'  Nat.  Bank  v.  Jefferson      459, 

466 

V.  Los  Angeles,  etc.  Co.  760 

City  Council  v.  Paige  218 

V.  Walton  277 

City  National  Bank  v.  Hamilton      127 

Clack  V.  Carlon  432 

V.  Holland  438,  440,  831,  845 

Cladfield  v.  Cox  438 

Claflin  V.  Van  Wagoner  660 

Claflin  Co.  v.  Middlesex  Banking 

Co.  594 

Clagett  V.  HaU  76,  420 

Claiborne  v.  Holland  223,  794,  800 

Clairborne  v.  Henderson  324 

V.  Holland  790 

Clairhorn  v.  Crockett  238 

Clamer  v.  Rawlings  237 

Clanricarde  v.  Henning      202,  850,  855 

Clapp  V.  Astor  556 

V.  Emery  86 

Clapper  v.  House  227 

Clapton  V.  Bulmer  256 

Clare  v.  Bedford  53 

Clark  V.  Anderson  458,  910 

V.  Beers  459 

V.  Burgh  633 

V.  Burnham  140 

V.  Cantwell  129 

T.  Chamberlain  142 

V.  Clark      126,  132,  147,  386,  417, 

418,  419,  423,  460, 

647,  863 

V.  Cook  633 

V.  Cordis  482 

V.  Crego  341 

V.  Everhart  174,  178 

V.  Flannery  845 

V.  Fuller  590 

V.  Garfield  453,  459 

V.  Girdwood  203 

V.  Haney  171 

V.  Hilton  152 

V.  Holden  540 

V.  Holland  195 

V.  Hornthal  611  c 

V.  Hunt  237,  239 

V.  Lee  206 

V.  McMahon  122 

V.  Maguire  647 


k  V.  Makenna 

647.  661 

V.  Malpas 

189,  194 

V.  Manning 

873 

V.  Martin 

246  a 

V.  Middlesworth 

554 

V.  Neves 

358 

V.  Oliver 

732 

V.  Patterson 

144 

V.  Peatridge 

226 

V.  Piatt 

383,  917,  918 

V.  Powell 

262,  264 

V.  Riddle 

766 

V.  Royle 

236 

V.  Sawyer 

586,  907,  919 

V.  Seymour 

773 

V.  Taylor 

724,  726 

V.  Tennison 

347 

V.  Timmons  127,  128,  133,  837 

V.  Van  Surley  610 

V.  Ward  189 

V.  Washington  Corp.  767 

V.  Wilson  694,  602  i,  602  m 

V.  Wright  828 

Clark's  Appeal  417,  418 

Estate  446 

Clarke,  In  re  63,  384,  618 

V.  Berkeley  513,  517 

V.  Blount  421 

V.  Boyce  235 

V.  Danvers  126,  144 

V.  Deveaux  539,  816,  922 

V.  East  Atlanta  Land  Co.         309, 

511  c 

V.  Hackerthome  217 

V.  Hart  869 

V.  Jenkins  421 

V.  Lott  97 

V.  McCreary  639 

V.  Moore  484,  764 

V.  Parker    262,  413,  502,  507,  508, 

511,  514,  517,  518,  519 

V.  Quackenboss  137 

V.  Royal  Panopticon  19,  768 

V.  Sawyer  182 

V.  Saxon  48,  50,  540,  541 

V.  Sisters  347 

V.  State  426 

V.  Turner  257,  510 

V.  Windham  648,  652,  653 

Clarke's  Appeal  305,  448 

Trusts,  In  re  671 

Clarkson  v.  Clarkson  545 

V.  Creely  770 

V.  De  Peyster  654 

V.  Hanway  187,  189 

V.  Robinson  432,  904,  906 

Clary,  In  re  429 

Claussen  v.  La  Franz  48,  126 

Clavering  v.  Clavering        103,  104,  162 

Clay  V.  Gurley  476  a 

V.  Hart  499 

V.  Layton  96 

V.  Sharpe  602  c,  602  bb 

V.  Willis  602  c 

V.  Wood  112 

Clayton  v.  Cagle  858 

V.  Glengall  580,  584 

V.  Gresham  644,  545 


INDEX    TO    CASES    CITED. 
[References  are  to  uections.] 


liii 


Clayton  v.  Hallett       42,  694,  729,  736, 

748 

Cleaver   r.    Mutual    R.  F.    Life 

Ass'd  181 

Clegg  V.  EdmondBon  141,  196 

V.  Fishwick  196 

V.  Rowland  528,  530 

Cleghorn  v.  Cleghorn  144 

Cleland  v.  Cleland  635 

Clemence  v.  Steere  540 

Clemens  v.  Caldwell  275,  276,  471 

V.  Clemens  273 

V.  Heckscher     225,  328,  800,  815  c 

Clemenston  v.  Williams  866 

Clement  v.  Hyde  700 

Clements  v.  Doener  815  c 

Clemson  v.  Davidson  68 

Clenestine's  Appeal  649 

Clenncll  r.  Lewthwaite  94 

Clerg's  Appeal  571 

Clergy  Society,  In  re  724 

Clerk  V.  Miller  654 

Clerkson  v.  Bower  13 

Clermont  v.  Tasburgh  71,  176 

Cler's  Case  511  c 

Cleve's  Case  161 

Cleveland  v.  Hallett  312,  315,  320 

V.  Hampden  Sav.  Bank  82,  96 

V.  Pollard  915 

V.  State  Bank  769 

Cleveland's  Settled  Estates  448 

Click  V.  Click  126 

Clifford  V.  Francis  719,  729 

V.  Stewart  262,  264 

Clifford  Banking  Co.  v.  Donovan 

Co.  181 

Clifton  V.  Davis  191 

V.  Haig  55 

V.  Lombe  112 

Clinefetter  v.  Ayers  562 

Clinton  v.  Seymour  578 

V.  Willcs  658 

Clippenger  i'.  Hipbaugh  214 

Clive  V.  Carew  664,  669,  671,  849 

V.  Clive  544,  545 

Clogett  V.  Hill  826 

Cloud  V.  Bond  460 

V.  Greasley  72 

V.  Ivie  132 

V.  Martin  118,  511 

Cloudsley  r.  Pelham  112 

Clough  V.  Bond         402,  404,  409,  417, 

419,  440,  444.  453,  455, 

462,  465,  847 

V.  Dixon  417,  422,  444,  445 

V.  Lambert  672 

Cloyne  v.  Yound  157 

Clulow's  Trust  397 

Clute  U.Bool  118,386  a 

I'.  Frasier  195 

Clutton,  Ex  parte  59,  277,  297 

Clyburn  v.  Reynolds  487,  553 

Clyde  V.  Simpson  794,  800 

Coape  V.  Arnold  358,  359,  369 

Coard  v.  Holdorness  157 

Coate's  Appeal  113,119 

Coates  V.  Robinson  655,  660 

V.  Williams  591 


Coates  V.  Woodsworth  133 

Cobb  V.  Biddle  765 

V.  Fant  544,  545,  918 

V.  Knight  79,  86,  104,  816  a, 

828 

V.  Stewart  246  a 

V.  Trammell  815  b 

Coburn  v.  Anderson  158 

Cochran  v.  Cochran  554 

r.  Paris  508,511 

V.  Richmond  &  A.  R.  Co.  910 

V.  Van  Surley  610 

Cock  V.  Goodfcllow  453,  454 

Cockburn  v.  Thompson  815 

Cockcll  V.  Tavlor  187,  831 

Cocker  v.  Quayle       453,  460,  467,  509, 

649.  847 

Cockerell  v.  Barber  272 

V.  Cholmeley  776,  851 

Cocking  V.  Pratt  178,  184,  201 

Cocks  V.  Haviland  421 

Cocksedge  v.  Cocksedge  672 

Coddrington  v.  Foley  578,  579 

Coder  v.  Haling  127 

Codman  v.  Brigham  262,  399,  738 

Codwise  v.  Gelston  694,  596 

Cody  V.  Staples  391 

Coe  V.  Bradley  215 

V.  Columbus,  &c.  Railway        764, 

766,  759 

V.  Knox  County  Bank  759 

V.  McBrown  769 

V.  Peacock  764,  769 

V.  Pennock  769 

V.  Washington  Mills  710 

Coe's  Trust  510 

Coffee  V.  Buffin  195 

Coffey  V.  Quint  202 

V.  SuUivan  162 

Coffin  V.  Bramlitt  462,  463 

V.  Cooper  517 

V.  Fernyhough  196 

V.  Morrill  642 

Coffman  v.  Gates  909 

Cofford  V.  Allen  848 

Cogbill  J).  Boyd  427,  452,  463,  471 

Coggcshall  V.  Pelton  697,  704,  748 

Coggswcll  V.  Griffith  828 

V.  Bank  122 

Cogswell  V.  Cogswell         227,  462,  468, 

544,  545,  652,  664,  826 

V.  Newburyport  S.  Inst'n  82 

Cohen  v.  Am.  Surety  Co.  686 

V.  Morris  602  m 

Cohnfeld  v.  Tanenbaum  225,  800 

Coit  V.  Fougera  237 

Colbert  I).  Rings  122.  646 

V.  Speer  700,  708,  729,  748 

Colburn  v.  Grant  415.  417 

V.  Morton  195,  205 

Colcliestcr  v.  Lowtcn  31 

Colcord  V.  Scamonda  238 

Coldwcll  V.  Home  725 

Cole  V.  Cole  828 

r.  Cunningham  72 

V.  Fickett  186 

V.  Gibbons  188 

V.  Gibson  214 


liv 


INDEX    TO    CASES    CITED. 
[References  are  to  aections.) 


Cole  V.  Jessup 

591 

Collins  V.  Hopkins 

602  h,  602  n 

V.  Littlefield 

112,  117,  386  a 

V.  Hoxie 

66,  891 

V.  McNeill 

213 

V.  Lavenburg 

655,  660 

V.  Miles 

225 

V.  McCarty 

858 

ti.  Moffitt 

602  w 

V.  More 

815  c 

V.  Moore 

828 

V.  Rainey 

206 

V.  Noble 

865 

V.  Rudolph 

648 

V.  Robins 

191 

V.  Serverson 

816  6 

V.  Savage 

602  ee 

V.  Stewart 

95,  96. 

103,  828 

V.  Scott 

221,  232 

V.  Stocking 

347 

V.  Society 

122.  646 

V.  Sullivan 

181,  206 

V.  Stokes 

195 

V.  Towuley 

892 

V.  Turner 

570 

V.  Wakeman 

157 

V.  Wade 

19 

,  20,  258,  273,  280, 

V.  Wickwire 

383 

294,  344, 

491,  496,  499,  503, 

».  wm 

511c 

504,  508,  714,  721 

V.  Watertown  287 

Cole's  Estate,  In  re       476  a,  477,  526, 

894,  910 

Colebrook's  Case  285 

Colegrave  v.  Manby  532,  534, 

535 

Coleman.  In  re  555 

V.  Bucks  &  Oxon  Union  Bank  122, 

V.  Columbia  Oil  Co.  545,  556 

V.  Connolly  273,  493,  502,  806 

V.  Fidelity  Tr.  etc.  Co.  104 

ti.  McGrew  816 

V.  McKee  171.  206 

V.  McICinney  785 

X.  O'Leary's  Ex'r       700,  715,  728, 
729,  748 
V.  Parran  82 

V.  Ross  892 

V.  Woolley  655,  660 

Coleman's  Assigned  Estate  598 

Coles  V.  Forrest  873 

V.  Trecothick  183,  187,  188, 

195,  199,  206,  428 
Colesbury  v.  Dart  217,  768,  790 

Coleson  v.  Blanton  330 

Colgate  V.  Colgate  205 

Collar  V.  Collar  79,  86 

Collard  v.  Hare  228,  865 

V.  Sampson  511  c 

College  of  Charleston  v.  Welling- 
ton 919 
Collett  V.  CoUett                                903  a 
Collier  v.  Alexander                          602  i 
V.  Carey                                         432 
V.  CoUier                               226,  620 
V.  Fallon  69 
V.  Grimsey                                       499 
V.  Harkness                                   239 
V.  McBean         308.  316,  358,  361, 
829 
V.  Slaughter                                   514 
V.  Walter                                          315 
Collin  V.  Blackburn                             616 
Collins,  Re                                            615 
V.  Bauman                            122,  646 
V.  Carey                                         904 
V.  Carlyle                              112,  251 
V.  Collins             166,  171,  181,  213, 
263,  450 
T.  Corson                                        132 
-».  Davia                                         223 


V.  Williamson  171,  206 

Collinson  v.  Collinson  146,  147 

V.  Lister       225,  455,  458,  810,  909 

V.  Patrick  98,  102 

Collinson's  Case  693,  704,  739 

CoUis  V.  CoUis  453,  826,  827 

V.  Robins  558 

Collister  v.  Fassitt  112,  511 

CoUomore  v.  TyndaU  319 

CoUum  V.  Sanger  223 

Collyer  v.  Burnett  741 

V.  Collins  602  hh 

Colman  v.  Lord  897 

V.  Lyne  228 

V.  Sarrel         97,  100,  108,  111,  367 

V.  Satterfield  678,  681 

Colmer  v.  Colmer  628.  634 

Colrane  v.  Worrel  456 

Colsten  V.  Chandos  493 

Colt  V.  Lasoriere  225 

Colton  V.  Colton  112 

Columbia  Bank  v.  Baldwin  76 

Columbia  Bridge  Co.  s.  Kline  42 

Columbia  Finance  &  Tr.  Co.  v. 

First  N.  B'ks  438,  831,  926 

Columbian  Univ.  v.  Taylor  159 

Colvin  V.  Currier  645 

V.  Mennefee  866 

Colyer  v.  Finch  800,  802,  803 

Com.  V.  Nase  160 

Combe  v.  Brasier  733,  748 

V.  Combe  580 

V.  Hughes  397 

Combi-y  v.  McMichael  312,  318 

Combs  V.  Hodge  831 

Cominger  v.  Louisville  Tr.  Co.  919 

Comley  v.  Dazian  206 

Commeyer  v.  United  Ger.  Church      55 

Commissioner  of   Roads  v.   Mc- 

Pherson  43 

Commissioners  v.  Archibald  275 

V.  Pemsel  705 

Com'rs,  &c.  v.  Archbold  275,  276 

V.  De  Clifford  380,  736 

V.  Forney  500 

V.  Johnson  452,  890  a 

V.  Mateer  270 

V.  Sullivan  699,  729 

V.  Walker  30,  39 

V.  Wy brants  802,  831 

Commonwealth  v.  Abbott  661 

».  Duffield  511c 

V.  Lee  610 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Iv 


Commonwealth  r.  Martin  64 

V.  McAlister  418 

V.  Richards  672,  673 

(1.  Shelby  564 

V.  Smith  756,  757 

V.  Stauffer  514,  555 

V.  Susq.  &  Del.  R.  Co.  49,  760 

V.  Tenth  Mass.  Turnp.  757 

Company  of  Pewterers  v.  Christ's 

Hospital  736 

Compton  V.  Barnes  918 

V.  Collinaon  48,  52,  672,  673 

V.  Oxenden  347,  348 

Conally  v.  Lyons  437  a 

Condict  V.  plower  585 

Condit  V.  Bigalow     133,  219,  448,  829, 

863 

V.  Maxwell  141,  223,  865 

V.  Reynolds  248,  253 

Condy  v.  Adrian  541 

V.  Campbell  380 

Cone  V.  Cone  269,  287 

V.  Dunham  864 

V.  Weld  730 

Conger  v.  Conger  919 

V.  Lowe  388 

Cong.  Church  v.  Southwick  411, 

413 

Congr'l  Uni.  Society  v.  Hale  72 

Conkey  v.  Dickinson  263,  572 

Conklin  v.  Conklin  380 

V.  Davis  713,  729,  748 

V.  Egerton  500 

Conkling  v.  Weatherwax  668 

Conlev  V.  Nailor  66 

Connah  v.  Sedgwick  590,  591 

Connecticut  v.  Bradish  218 

V.  Howarth  429,  468 

Conn.  Life  Ins.  Co.  v.  McCormick 

815  c 
Conn.  River  S.  Bank  v.  Albee     82,  96, 

104 
Conn.  etc.  Trust  Co.'s  Appeal  547 

Conn.  Trust  Co.  r.  Hollister  381 

Connely  v.  Haggerty  764,  770 

Conningham  v.  Coimingham  261,  262, 

268 

V.  Mellish  151,  153,  158 

V.  Plunkett  100 

Connolly  v.  Connolly  515 

V.  Farrell  117,  118 

V.  Hammond  869 

V.  Howe  236 

V.  Keating  142 

V.  Pardon  891 

V.  Parsons  770,  782 

Connolly's  Estate  544 

Connor,  In  re  66 

V.  Follansbee  137 

V.  Gardner  261,  358,  371 

V.  Lewis  133 

V.  New  Albany  328 

V.  Ogle  396,  612 

ConoUy,  hi  re  112 

V.  Wells  876,  882 

Conover  v.  Beckett  815  c 

V.  Stothoff  795 

V.  Warren  233,  237 


Conoy  V.  Troutman  602  aa 

Conrad  v.  Shomo  684 

Conroe  v.  Birdsall  170 

Conron  v.  Coiiron  573 

Conry  v.  Cauineld  433,  863,  876 

Consi.story  v.  Brandon  748 

Constant  v.  Metteson  918 

V.  Schuyler  87 

Constantcin  v.  Blache  585 

Constantinides  v.  Walsh  663 

Consterdine  v.  Consterdine  417 

Contec  V.  Dawson      417,  420,  466,  826 

Converse  v.  Davis  602  m 

V.  Sickles  217,  828 

Conway,  Ex  parte  588 

V.  Alexander  226 

V.  Conway  678 

V.  Cutting  82,  438 

V.  P'enton  477 

V.  Green  205 

V.  Kensworthy  82,  231 

V.    Smith  680 

Conybeare's  Settlement,  Ex  parte    211 , 

'2%1 
Good  n.  Good  71 

V.  Pollard  236 

Cook  V.  Addison  447,  468 

V.  Arnham  862,  872 

V.  Barr  81 

V.  Bremond  147 

n.  Bronaugh  133,  221 

V.  Burtchaell  206 

V.  Gholmondeley  427 

V.  ClajTvorth  191 

V.  Gollinridge  454,  470 

t).  Cook  215,  499 

V.  Councilman  358 

V.  Crawford        273,  284,  290,  294, 
339,  340,  344,  492,  494. 
495  502 
V.  Dawson  566,  768,  8O2!  803 

V.  Dealy  150 

V.  Dillon  602  t,  602  ff 

-D.  Dunkenfield  156,  699,  729 

V.  Ellington  112 

V.  Fountain  104,  121,  162,  167 

V.  Fryer  260 

V.  Gardner  920,  921 

V.  Gilmore  910,  918 

V.  Gwavas  152 

V.  Husbands  50 

».  Hutchinson     150,  151,  153,  158 
V.  Ingoldsby  290 

V.  Kennedy  647 

V.  Lamotte  104,  194,  201,  210 

Ti.  Lawrence  292 

V.  Lowry     23,  429,  468,  471,  556  a 
V.  Nathan  184 

V.  Parsons  476,  915 

?).  Sherman  133,  195 

V.  Soltan  219,  352 

t).  Stationers'  Co.  162,  160 

V.  Trimble  232 

V.  TuUis  336,  831 

V.  L^niversalist  Conven.  7.30 

v.  Wiggins  672,  674 

Cooke,  Re  498 

V.  Husbands  655 


Ivi 


INDEX    TO    CASES    CITED. 
[References  are  to  aectiona.] 


Cooke  V.  Piatt 

lUa 

Corgell  V.  Dunton 

667 

Cooksey  v.  Bryan 

141 

Corie  v.  Bertie 

694 

Cookson  V.  Reay 

461 

Corin  v.  Glenwood  Cemetery 

705 

V.  Richardson 

127, 

187 

Corkers  v.  Minons 

516 

Cool  V.  Jackman 

468 

Corle's  Case 

706 

Cooley  V.  Lobdell 

82 

Corley  v.  Corley 

627,  629 

V.  Rankin 

191 

V.  Stafford 

202,  203 

V.  Scarlett 

71 

Corlies  v.  Corlies 

276,  459 

Coolidge,  Matter  of. 

448 

Cormerais  v.  Genella 

602  gg 

Coombs  V.  Jordan 

598, 

797, 

798 

Cormick  v.  Holbrook 

680 

V.  Read 

676 

Corn  Exchange  v.  Babcock 

660 

Coon  V.  Brook 

660 

Cornell,  In  re 

845 

Cooney  v.  Ryter 

82 

V.  Green 

500 

Coonrod  v.  Coourod 

475, 

794 

V.  Lovett 

514 

Coope  V.  Carter 

889, 

890 

V.  Maltby 

223 

Cooper  V.  Cartwright 

347 

Cornfoot  v.  Fowke 

172 

V.  Cockrum 

126 

Corning  v.  Lewis 

680 

V.  Cooper             254, 

347, 

516, 

890 

V.  White 

594 

V.  Day 

275 

282 

Cornish  v.  Wilson 

658,  570 

V.  Douglas 

480 

Cornman's  Estate 

133,  137 

V.  Haines 

511  c 

Cornwell  v.  Orton 

299,  305 

t'.  Heatherton 

66 

391 

Cornwise  v.  Bourgum 

466,  618 

V.  111.  Cen.  R.  Co. 

225 

242 

Corp.  of  Carlisle  v.  Wilson 

871 

V.  Kynock 

317 

319 

320 

Corp.  of  Reading  v.  Lane 

600 

ti.  Lankford 

598 

Corp.  of  Sons  of  Clergy  v.  Mose       743 

V.  Martin 

254 

Corr's  Appeal 

865 

V.  McClum 

257 

Corrie  v.  Byron 

286 

V.  Reilly 

369 

Corse  V.  Chapman 

498,  766 

V.  Skeele 

137 

V.  Corse 

484 

V.  Spottiswood 

236 

V.  Leggett 

81,  82 

V.  Stevens 

602  ee 

Corser  v.  Craig 

438 

V.  Thornton 

117, 

118, 

624 

Cory  V.  Cory                        185 

191,  201 

V.  Whitney 

322 

585 

V.  Gertcken 

53,  624 

V.  Wyatt 

388 

555 

Coryell  v.  Dunton                     611  c,  654 

Cooper's  Estate 

448 

1).  Klehm 

347 

Cooth  V.  Jackson 

137 

Cory  ton  v.  Hilyan 

7 

Cope  V.  Barry 

873 

Cosser  v.  Radford 

600 

V.  Clark 

849 

Costa  V.  Silva 

132 

V.  Cope 

664 

Costabadie  v.  Costabadie 

117,  511 

Copeland  v.  Ins.  Co. 

206 

Costeker  v.  Horrox 

827 

V.  Bruning 

195 

Coster  V.  Coster 

284,  636 

V.  Summers 

82 

V.  Griswold 

72,  187 

Copeley  v.  O'Neil 

606 

V.  Murray 

863 

Copeman  v.  Gallant 

58 

Cotham  v.  West 

615 

Copis  V.  Middleton 

197 

Cottarr  j.  E.  Counties  R.  R.  < 

"Do.     416, 

Coppage  V.  Barnett 

133 

418 

V.  Murphy 

235 

Cotteen  v.  Missing 

97,  102 

Coppard  v.  Allen 

876 

Cotter  V.  Burchard 

843 

Copper  Mining  Co.  r.  Beach 

786 

Cotterel  v.  Hampson 

30 

Copper     River     Mining 

Co. 

V. 

V.  Purchase 

226,  861 

McClellan 

206 

Cotterell  v.  Long 

602  d 

Copperthwaite  v.  Tuite 

654 

Cotting  V.  De  Sartiges 

511  b 

Coppin  V.  Coppin 

236 

Cottingham  v.  Shrewsbury 

876 

V.  Ferny  hough 

633 

834 

Cottington  v.  Fletcher          82 

,  84,  137, 

V.  Gray 

657 

151,  152 

165,  216 

Copping  V.  Cooke 

243 

Cottle  V.  Harrold 

126 

Coquard  v.  National  Linseed  Oil 

Cottman  v.  Grace                700 

732,  736 

Co. 

21 

Cotton,  In  re 

616 

Cor  bally  v.  Grainger 

665 

V.  Burkelman 

252 

Corbett  v.  Barker 

856 

V.  Clark                        898 

900,  902 

V.  Laurens 

552 

V.  Cotton 

450,  547 

V.  May  dwell 

578 

579 

V.  King 

103 

Corbin  v.  Baker 

195 

V.  Penrose 

903  a 

V.  Wilson 

615 

616 

V.  Wood 

134,  137 

Corby  v.  Corby 

121 

Cottrell  V.  Cottrell 

787 

Cordell's  Case 

217 

11.  Hughes 

218,  354 

Corder  v.  Morgan 

602 

c,  602  hb 

Couch  V.  Harp 

148 

Cordwell  v.  Mackrill 

833 

834 

Cough  V.  Boud 

914 

INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Ivii 


Couleon  v.  Walton  855 

County  Att'y  v.  May  724 
Courier-Journal  Co.   v.  Columbia 

F.  Ins.  Co.  598,  815  b,  907 

Course  v.  Humphrey  888 

Court  V.  Jeffrey  812,  881 

V.  Robarts  472 

Courtenay  v.  Courtenay  112,  268, 

280,  401 

V.  Taylor  260 

Courtier,  In  re  248,  477,  511,  540, 

552 

Cousett  V.  Bell  877,  907 

Cousin's  Estate  452 

Coutts  D.  Acworth  104 

Covar  V.  Cantelou  874 

Covenhoven  v.  Shuler  641,  546,  647 

Coventry  v.  Coventry  52,  108,  268, 

276,  280,  282,  884,  899,  901, 

908,  924 

V.  Hall  872 

V.  Higgs  613,  517 

Covcrdale  v.  Eastwood  208 

Covington  v.  Anderson  828 

V.  MoEntire  546 

Cowdery  v.  Way  654 

Cowdry  v.  Dav  203 

Cowoll  V.  Gatcombe  402,  417 

V.  Hicks  358 

Cowgill  V.  Oxmantown  639,  777 

Cowing  V.  Howard  918 

Cowles  V.  Brown  511 

Cowley  V.  Hartstonge  461,  511 

V.  Wellesley  546 

Cowman  v.  Colquhoun  820  a 

V.  Hall  322 

V.  Harrison  113,  117 

Cowper  V.  Cowper  183,  357 

V.  Mantell  119,  256 

V.  Stoneham  441,  848,  877 

Cowperthwaite  v.  Bank  181 

Cowstad  r.  Cely  878 

Cox  V.  Arnsman  171 

V.  Bassett  714 

V.  Bateman  137,  260,  837 

V.  Chamberlain  785 

V.  Coleman  668 

V.  Cox  656  a,  794,  799 

V.  Dolman  863 

V.  Edwards  299 

V.  Fenwick  232,  237 

V.  Hidstead  602  r,  602  u 

V.  John  197 

V.  Parker  160,  434 

V.  Sprigg  98,  109 

V.  Walker  17,  328,  411,  520 

V.  Wills  540 

V.  Wood  232 

Coykendall  v.  Rutherford  499 

Coyne  v.  Supreme  Conclave  86 

Cozine  v.  Graham  84 

Crabli  V.  Crabb  75,  77,  147 

V.  Young  401 

Crabtree  v.  Potter  171,  ISl 

Crackett  v.  Bethune  466,  468,  900 

Cradock  v.  Owen  327,  437 

V.  Piper  432,  895 

Crafton  v.  Frith  699 


Craig  V.  Craig  274,  280.  281,  393, 

396,  398,  766 

V.  Hone  59,  277,  381 

V.  Leslie  64 

V.  Radford  55 

V.  Wheeler  450,  451 

Craigdallie  v.  Aikman  734 

Craigg  V.  Holmes  191 

Crallan  v.  Oughton  601 

Cram  v.  Mitchell        196,  206,  586.  590 

Cramton  v.  Rutledge  248,  779 

Cranch  v.  Cranch  449 

Crane,  Matter  of  82,  117,  119 

II.  BoIIps  312,  313,  315,  448 

V.  Caldwell  238 

V.  Conklin  187,  191 

V.  Crane  17,  328 

V.  Drake  225,  810,  815 

V.  Gough  110 

V.  Hearn  419 

V.  Inglehart  459 

V.  Kelley  680 

V.  Palmer  239 

V.  Reeder  780 

V.  Ruder  327 

Cranston,  In  re  705 

V.  Crane  602  w,  602  x,  779 

V.  Plumb  674 

Cranstown  v.  Johnston  71,  72 

Crate  v.  Luippold  437  a 

Crawford  v.  Bertholf  38,  231 

V.  Crawford  133,  137 

V.  Jones  127,  132 

V.  Langmaid    96,  252.  386  a,  827  a 

V.  Meis  195,  431 

V.  North  Eastern  Ry.  545,  556 

V.  Patterson  612 

V.  Wearn  766 

V.  Workman  75,  76 

Crawford's  Appeal  96 

Crawford's  Heirs  v.  Thomas      729,  748 

Crawley  v.  Crafton  76,  134,  162 

V.  Crawley  397,  449,  551 

V.  Dixon  551 

V.  Richardson  860 

Crawshaw  v.  Collins  906 

Crawshay  v.  Collins  430,  454.  470 

Creagh  v.  Blood  13,  269,  347 

V.  Wilson  514,  515 

Creamer  v.  Holbrook  263 

Creaton  v.  Creaton  305.  308.  315 

Credlant's  Estate  310  « 

Creed  v.  Creed  876 

V.  Lancaster  Bank  126.  130.  139, 

149 

Creesy  v.  Willis  560 

Creigh  v.  Henson  863,  866 

Creighton  i'.  Ringle  225,  456 

Creney  ?'.  Dupree  75 

Crerar  v.  Williams  700,  736,  748 

Cresap  v.  Cresap  144 

Cresop  V.  McLean  602  dd 

Grossman's  Appeal  82,  101,  109 

Cresson  v.  Ferree  498,  506,  783 

Cresson's  Appeal  43,  704 

CresswoU's  Adm'r  v.  Jones  82 

Creswell  v.  Dewell  849,  851,  926 

Creuze  v.  Hunter  600 


iviii 


INDEX    TO    CASES    CITED, 
[References  are  to  sections.] 


Creveling  v.  Fritts  195 

Crewe  v.  Dickeii        271.  273,  408,  411, 

497,  502,  503,  806 

Cribbins  v.  Barkwood  188 

Cribbs  V.  Walker  392 

V.  Grierson  712 

Cripps  V.  Jee  82,  151 

Crisfield  v.  State  863 

Crisp  V.  Spranger  246,  403 

Crispell  v.  Dubois  201,  204,  210 

Crissman  v.  Crissman  86 

Critchfield  v.  Haynes  602  v 

Critton  V.  Fairchild  334 

Crocheron  v.  Jaques  39 

Crocker  v.  Dillon  841 

V.  Lowenthal  261 

V.  Robertson  602  d,  602  q 

Crockett  v.  Crockett  112,  117,  118, 

386a,  620 

V.  Doriot  660,  661 

V.  McGuire  241 

Croft  V.  Adam  249,  251 

V.  Arthur  149 

V.  Lathrop  72 

V.  Powell  602  c 

V.  Slee  152,  655 

Crofton  V.  Davies  360 

V.  Ormsby  217,  828 

Crofts  V.  Evett  718 

V.  Middleton  184,  657 

Croker  v.  Hertford  93 

Cromie  II.  Bull  510,511 

Crommelin  v.  Crommelin         513,  514, 

517 
Crompton  v.  Vaser  97 

Cromwell  v.  Norton  865 

Cronnin  v.  Louisville,  &c.  Soc.         715, 

748 

Crook  ?'.  Brooking  82,  86 

V.  De  Vandes  380 

V.  Glen  858 

V.  Ingoldsby  259 

V.  Turpin  626,  628,  630,  632 

Crooke  v.  Kings  County  23 

Crooker  v.  Crooker  126 

Crooks  V.  Jenkins  223 

Crop  V.  Norton  126,  132,  133,  196 

Cropster  v.  Griffith  52 

Crosby  v.  Church  658,  669 

V.  Hillyer  593,  596 

V.  Huston  284,  602  d,  602  p 

V.  Mann  928 

V.  Mason  476  a 

Croskill  V.  Bower  195,  432,  461 

Cross  V.  Beavan  617 

V.  Cross  380 

V.  Kennington  570 

V.  Norton  82 

V.  Petree  438 

V.  Smith  407 

V.  U.  S.  Trust  Co.         72,  391,  741 

Cross's  Estate,  Re  150 

Crossling  v.  Crossling  252,  507 

Grossman  v.  Keister  181 

Croton,  &c.  Co.  v.  Ryder  761 

Croughton's  Trusts,  In  re  671 

Crowe  V.  Ballard  192,  206 

V.  Crisford  451 


Crowley  v.  Crowley  133,  865 

V.  Richardson  858 

Crowther, /n  re  454,455,511,548 

V.  Crowther  858,  871 

CroxaU  v.  Shererd  6,  301,  321 

Croxton,  Ex  parte  891 

Crozier  v.  Crozier  371 

V.  Young  149 

Cruce  V.  Cruce  471 

Crue  V.  Caldwell  104 

Cruger  v.  Cruger  660,  667 

V.  Halliday         268,  274,  280,  285, 

401,  901 

V.  HeyTvood  612 

V.  Jones  334 

Cruikshank  v.  Duffin  768 

Cruikshanks  v.  Roberts  72 

Cruise  v.  Christopher  189 

Cruiston  v.  Olcott  452 

Crumlish  v.  S.  T.  &  S.  D.  Co.  104 

Crump,  In  re  654 

V.  Baker  913 

V.  Gerack  468 

Crump's  Estate  554 

Cruse  V.  Barley  152,  160,  499 

V.  McKee  251,  254,  255 

Cruselle  v.  Chastain  437  b 

Crutcher  v.  Hord  215 

Crutchfield,  Ex  parte  606 

Cniwys  V.  Colman      112,  248,  256,  285 

Cryder's  Appeal  795,  798 

Cuddy  V.  Waldron  886 

Cueman  v.  Broadnax  301 

Cuff  V.  Hall  490,  771 

Culpepper  v.  Aston  152,  597,  764, 

770,  785,  789,  795,  796 

Culross  V.  Gibbons  99 

Culver  V.  Culver  205 

V.  Guyer  828 

Cumberland  v.  Codrington  98,  562 

Cumberland  Coal  Co.  v.  Hoffman 

Coal  Co.  206 

Cumberland  Coal  Co.  v.  Sherman     207 

Cumick  V.  Tucker  113 

Cuming  v.  Robins  137 

Cummings  v.  Boswell  644,  545 

V.  Cummings  127 

V.  Fullam  438 

V.  Miller  680 

V.  Sharp  662 

V.  Williamson  660,  768 

Cummins  v.  Bromfield  888 

V.  Cummins        260,  261,  262,  264, 

429,  454 

Cumston  v.  Bartlett  511  c 

Cunard's  Trusts,  Re  264 

Cunliffe  v.  Cunliffe  112 

Cunnack  v.  Edwards  710,  728 

Cunningham,  In  re  269,  503 

V.  Antrobus  633 

V.  Bank  of  Nampa  122,  328,  828 

V.  Cunningham  137,  918 

V.  Davenport  82,  225 

V.  Freeborn  585,  593 

V.  Gray  577 

V.  Jones  202  b 

V.  McKinley  863,  864,  865 

V.  Moody  323 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


lix 


Cunningham  r.  Parker 

576,  802 

Cutler  V.  Babcock 

171.  206 

V.  Pattce 

223 

V.  Griswold 

149 

V.  Pell 

876 

879.  881 

V.  Meeker 

168,  231 

V.  Sohley 

539 

V.  Tuttle              126, 

131, 

132,  133, 

V.  Sheltering  Arms 

710,  747 

137 

149,  165 

V.  Wood  bridge 

846 

Cutler's  Trusts 

633,  636 

Curd  V.  Field 

112, 

790,  796 

Cutter  V.  Burroughfl 

248,  503 

Curdy  v.  Berton 

171,  181 

Cuyier  v.  Bradt 

82 

136,  865 

Cureton  v.  Watson 

456 

Curling  !'.  Curling 

724,  728 

V.  Shuttlcworth 

602  c.  602  p 

D. 

Curnick  v.  Tucker 

113 

Curran  v.  Green 

277 

Dabney  v.  Manning 

308 

Currant  v.  Jago 

144 

Da  Costa  v.  Da  Pas 

702. 

715,  718, 

Currence  v.  Ward 

76,  132 

724,  729 

Currer  v.  Walkley 

795 

Daggett  V.  W^hite 

264 

Currey,  Ee,  Gibson  v.  Way 

671 

Daglcy  V.  Tolferry 

624 

Currie  v.  Hart 

590 

D'Aguilar  v.  Drinkwater 

511 

517,518 

V.  Look 

147 

Dailey  v.  New  Haven 

43,  259 

V.  Pye 

747 

V.  Wight 

275 

V.  Steele 

185 

Dakin  v.  Bercsford 

649 

V.  White 

82 

122,  231 

V.  Demming 

918 

Currier  v.  Studley 

865 

V.  Savage 

299,  302 

Curry  v.  Allen 

861 

Daland  v.  Williams 

245 

V.  Hill 

764 

Dale  V.  Hamilton 

82 

V.  Shrader 

675 

Daley  v.  Desbou\nerie 

512, 

517,  518, 

Curteis  v.  Candler          280,  476  a,  894, 

519 

899 

922,  928 

Dalheguey  v.  Tabor 

246  a 

Curtin  v.  Krohm 

476  a 

Dalhun  v.  Fitler 

591 

Curtis,  In  re 

766 

V.  Wampole 

667.  679 

V.  Brown 

728 

Dalliba  v.  Riggs 

237 

V.  Buckingham 

602  ee 

D'Almaine  v.  Anderson 

286 

V.  Crossley 

100 

Dalrymple  v.  Taneyhill 

610 

V.  Curtis 

871 

Dalston  v.  Coatsworth 

183 

V.  Daniel 

864 

Dalton  V.  Dal  ton 

828 

V.  Engel 

660 

V.  Hewen 

795 

V.  P'uilbrook 

501 

V.  Young 

802 

V.  Hutton 

709,  741 

Dalton's  Settlement 

612 

V.  Lakin 

855 

Daly  V.  Beckett 

530 

V.  Lanier 

218 

V.  Bernstein 

260 

V.  Leavitt 

592 

Daly's  Estate              699 

,  705 

710.  723 

V.  Luken    160,  381, 

385, 

393,  532, 
535 

Dalzell  V.  Crawford 

598. 

794.  795. 
796,  798 

V.  Mason 

417,  419 

Dame  v.  Annas 

784 

V.  Osborn 

544, 

545,  547 

Dammert  v.  Osborn 

72 

391.  741 

V.  Perry 

165 

Damon  r.  Bibber 

602  rt 

V.  Price 

305,  319 

Damon's  Civse 

739 

V.  Ripon 

112, 

113,  116 

Dan  V.  McKnight 

218 

V.  Smith         71,  276 

280, 

615,  843 

Dana  v.  Bank  of  United  States          31, 

Curtiss,  In  re 

280 

588 

590,  592 

Curton  V.  Jellicoe 

797 

V.  Dana 

133 

147,  252 

Cusack  V.  Cusack 

361 

V.  Davenport 

602  aa 

V.  White 

214 

r.  Farrington      602 

q,  602  r.  602  /. 

Cushing  V.  Blake        324 

357, 

368,  359 

60; 

I  u,  602  X 

ti.  Burrill 

550 

V.  Lull 

591 

V.  Danforth 

206 

V.  Murray 

391 

r.  Spalding      310,  310  o. 

386,  677, 

V.  Newhall 

218 

920 

V.  Petersham 

231 

Cushing's  Will,  In  re 

556 

Danahy  v.  Noonan 

920 

Cushman  v.  Bonfield 

760 

Dance  r.  Goldingham 

86 

V.  Coleman 

309 

Dandridge  v.  Minge 

562 

V.  Cushman 

262 

Danforth  v.  Briggs 

144 

V.  Goodwin 

828 

V.  Oshkosh 

386.  391 

Cushney  v.  Henry 

38.  240 

Danforth's  Estate 

462,  468 

Custance  v.  Cunningham 

151 

D'Angibau,  In  re 

52,  489 

Cuthbert  v.  Baker 

793 

Daniel  r.  Daniel 

330 

V.  Chauvet 

920 

V.  Davidson 

217.  828 

t).  Rolf 

648 

V.  Felt 

511c 

INDEX   TO    CASES    CITED. 

[References  are  to  sections.] 


Daniel  v.  HoUingshead 

218 

Davies  v.  Bush 

784 

V.  Newton 

623 

V.  Davies 

160, 

361, 

618,  834 

V.  Robinson 

660 

V.  Hodgson 

53,  671 

V.  Uhley 

50 

V.  Jones 

312,  313 

V.  Warren 

451 

V.  Lee 

540 

Daniels  v.  Eldridge 

386,  555 

V.  Speed 

379 

Danser  v.  Warwick 

86 

V.  Thomas 

231 

Danson,  In  re 

394 

V.  Thornycroft 

646, 

652,  671 

Dantzler  v.  Mclnnis 

437  o,  485, 

V.  Topp 

563 

815,  910 

V.  Westcombe 

776 

Darby  v.  Calligan 

686 

Davis,  Ex  parte 

286 

Darcy  v.  Kelley 

699,  710,  722, 

In  re      82,  104, 

151, 

429, 

468,  471 

728,  729 

V.  Austin 

618,  624 

D'Arcy  v.  Blake 

323,  871 

V.  Barrett 

431 

V.  Croft 

487,  649 

V.  Bay  State  League 

919 

V.  Hall 

428,  431 

V.  Bessehl 

890  a 

Dare  v.  Allen 

639 

V.  Boyden 

863 

Dargan  v.  Richardson 

589,  593 

V.  Browne 

816 

Darke  v.  Martyn 

443,  453 

V.  Cain 

647,  648 

V.  Williamson 

476,  907 

V.  Charles  River  R. 

Co. 

17,  328 

Darkin  v.  Darkin 

127 

V.  Coburn 

86,  864 

Darley  v.  Darley        107 

310,  612,  647, 

V.  Cotton 

865 

648,  651 

V.  Davis 

127, 

499, 

639,  891 

Darling,  In  re 

699 

V.  Dendy 

912 

V.  Hammer 

469 

V.  Eastman 

864 

V.  Potts 

195 

V.  Gardner 

569 

Darlington,  Ex  parte 

615 

V.  Hamlin 

206 

V.  Darlington 

448 

V.  Harkness 

618 

V.  McCooke 

97 

V.  Harman 

441,  456 

V.  Turner 

863 

V.  Hayden 

302 

Darlington's  Estate 

178,  194,  206 

V.  Hemingway 

873 

Darnaby  v.  Watts 

415,  417,  418 

V.  Heppert 

252 

Darnley,  In  re 

548,  551 

V.  Hodgson 

849 

Darragh  v.  Rowe 

828 

V.  Howcote 

783 

Darrah  v.  McNair 

94,  327,  436 

V.  Jackson 

545 

Dartmouth  College  v.  Woodward      30, 

V.  Jernigan 

151,  158 

44,  737,  742 

V.  Johannot 

610 

Dartnall,  In  re 

177 

V.  Kerr 

171 

172,  206 

Darwell  v.  Darwell 

421 

V.  Lamb 

232 

Darwin  v.  Hanley 

591 

V.  Marlborough 

69,  188 

DasheU  v.  Earle 

639 

V.  McNally 

192 

Dashiel  v.  Att'y-Gen. 

160,  724,  748 

V.  McNeil 

411 

Dash  wood  v.  Bulkeley 

511,  512,  515, 

V.  Newton 

627 

629,  632 

517,  518,  519 

V.  Otty 

84,  226 

V.  Magniac 

546 

V.  Prout 

648 

Daubigny  v.  Duval 

243 

V.  Rhodes 

621 

Daubrey  v.  Cockburn 

511  a 

V.  Roberts 

618 

Daughady  v.  Payne 

232,  237 

V.  Settle 

217 

Davall  V.  New  River  Co 

434 

V.  Simpson 

195 

Davant  v.  Guerard 

330 

V.  Spurling  246 

402 

,403 

,  404,  417 

Davenport  v.  Coltman 

160 

V.  Stambaugh 

85,  91 

V.  Davenport 

680 

V.  Tingle 

170,  849 

V.  Eskew 

358 

V.  Vincent 

611c 

V.  Farrar 

324 

V.  Wetherell 

133 

V.  Kirkland 

448 

V.  Whitehead 

79 

V.  Prewett 

633 

V.  Williams 

312 

V.  Stafford 

440 

Da\ns,  Appellant 

459,  460 

Davenport  Plow  Co.  v. 

Lamp           828 

Petitioner 

610 

Daveron,  In  re 

383 

Davis's  App. 

786  a 

Davey  v.  Durant 

768,  780 

Estate 

590 

David  V.  Froud 

924 

Trusts,  Re 

741 

Davidson  v.  Foley 

152 

Davis  Co.  ?).  August 

us 

592 

V.  Gardner 

654 

Davison's  Estate,  In  re 

252 

V.  Little 

187,  188 

Davoue  v.  Fanning 

195, 

197,  205. 

V.  Mantor 

225,  800 

294 

428 

499,  501 

V.  Moore 

275 

Davy  V.  Hooper 

250 

251,  255 

Davidson's  Ex'r  v.  Kemper            815  a 

V.  Seys 

892 

Davie  v.  Beardsham 

38,  231 

Dawes  v.  Betts 

787 

INDEX   TO   CASES   CITED. 
[References  are  to  section^.] 


Dawson,  In  re  66,  380,  381 

V.  Clarke    152,  157,   158,  160,  910 

V.  Dawson    38,    93,    97,    98,    104, 

240,  280 

V.  Hearne  119 

V.  Jay  603 

V.  Lawes  -10 

V.  Massey  200,  468 

V.  Parsons  322 

V.  Parrot  901 

V.  Small  706 

Day  V.  Arundel  219 

V.  Croft  818 

V.  Davis  866 

V.  Day  891,  894 

V.  Roth  86,  126,  127,  135 

V.  Thwaites  511  6 

V.  Wetherby  873 

Dayton  v.U.B.  Claflin  Co.  828 

V.  Stewart  104 

Deaderick  v.  Cantrell        404,  416,  418, 

420,  421,  466 

V.  Watkins  187 

Dean  v.  Adler  104 

V.  Dean      75,  76,  84,  85,  126,  232, 

855 

V.  Long  520 

V.  Mitchell  322 

V.  Sandford  277 

Deane  v.  Home  for  Aged  Colored 

Women  476  a,  903  a 

Deaner  v.  O'Hara  127 

Deans  v.  Scriba  918 

Dearin  v.  Fitzpatrick  627,  929 

Dearie  v.  Hall  438 

Deatly  v.  Murphy  189 

De  Barante  v.  Gott  38 

Debenham  v.  Ox  214 

De  Bevoise  v.  Sandford     128,  195,  921 
De  Biel  i'.  Thompson  208 

De  Bouchout  v.  Goldsmid  243 

De  Caters  v.  Chaumont  195,  593 

De  Celis  v.  Porter  195 

De  Chambrun  v.  Cox  202  6 

Deck  V.  Vabler  139,  144,  147 

De  Clifford's  Estate  404,  441 

Decouchc  v.  Lavetier  228 

Dedham  Bank  v.  Richards  693 

Deem  v.  Millikin  181 

Deemer  v.  Kessinger  358 

Deen  v.  Cozzens  275,  619,  620 

Deerhurst  v.  St.  Albans  339,  360, 

373,  390 
Deering  v.  Adams       262,  308,  312,  315 
V.  Kcrfoot  322,  560 

V.  Tucker  920 

De  Forrest  v.  Bacon  593 

Deg  V.  Deg  82,  137,  511  c,  837 

De  Garcin  v.  T.awson         718,  726,  741 
Degman  v.  Degman  248,  253,  254, 

511c 
De  GrafTenrcid  v.  Green  541 

De  Hilms  v.  Free  139 

Dehon  v.  Foster  72 

Deibert's  Appeal  299,  305,  310 

Deihl  r.  King  380 

De  Jarnette  v.  De  Jarnette       453,  461 
Deklyn  v.  Watkins  71 


Do  Koven  v.  Alsop 
Deiaficid  v.  Anderson 

V.  Calden 
Dclagarde  v.  Lampriere 
Delane  v.  Delane 
Delaplaine  v.  Lawrence 
Delaplane  v.  Lewis 
Delassus  v.  Poston 
De  Laurencel  v.  De  Boom 
Dclavante,  In  re 
Delker  v.  Owenboro 
Dollar's  Estate,  In  re 
Dollinger's  App. 
Dcloncy  v.  Hutcheson 


bd 


544,  545 
187 
891 

630,  045 
141 
774 
259 
232 
257 
890 
554 

122,  646 
672 
136 


Delorane  v.  Brown  855,  862,  868 

Delouche  v.  Savetier  863 

Delves  v.  Gray  195 

Denuill  V.  Morgan  602  g 

De  ManncN-ille  v.  Crompton  171,   213, 

460,  466,  508,  509 

V.  De  Manneville  603 

Demaree  v.  Driskill  149 

Demarest  v.  Terhune  673 

V.  Wynkoop         218,  602  /,  602  hb, 

680,  855 

Demott  V.  Muller  680 

Den  V.  Crawford  299 

V.  Hanks  299 

Denegre  v.  Walker  484,  529,  764 

Denike  v.  Harris  440,  452 

Dening  v.  Ware  100,  111 

Denis's  Estate  99 

Denn  v.  McKnight  217 

Denne  r.  Judge  263,  273 

Dennett  v.  Dennett  299 

Dennis  v.  Badd  611 

V.  Dennis  528 

V.  McCagg  215 

V.  McCoy  206 

Dennison  v.  Goehring         98,  104,  109, 

111,  140,  143,  359,  361 

V.  Nigh  642 

Denny  r.  Allen  918 

V.  Kettcl  257 

Dent  V.  Allcroft  709 

r.  Bennett  189,  190,  204,  210 

V.  Dent  477,  552 

v.  Slough  429,  430 

Denton  v.  Davia  83,  841,  844,  965 

V.  Denton  329 

V.  Donner  187,  188 

V.  McKenzie  167 

V.  Merrill  846 

Denver  v.  Druce  722,  729.  731 

De  Peystor  r.  Beekman  282,  875 

V.  Clarkson  463,  468 

V.  Clendinning  240,  259.  262, 

263,  275,  280,  541 

V.  Farrars  343,  411,  414 

V.  Gould  126,  137,  138 

V.  Michael  537 

De  Pevster's  Case  918 

De  Pothonier,  In  re  404,  442 

De  Puy  V.  Standard  M.  Co.  72 

Derasmes  v.  Dunham  275 

Dcrhishire  v.  Home  671,  846,  849 

Derby  v.  Derby  699,  720,  724,  748 

Derome  v.  Vose  843 


Ixii 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.) 


Derry  v.  Deny  127,  828 

V.  Fielder  126,  165,  213 

V.  Peek  177 

Deniah  v.  Brown  322 

De  Ruyter  v.  St.  Peter's  Church     588, 

754 

De  Rycko,  Matter  of  311 

De  Saussure  v.  Lyons  499 

Desbody  v.  Boyville  513 

Desborough  v.  Harris  792 

De  Silver's  Estate  189,  721,  731 

De  Tabley,  In  re  477 

De  Teissier's  Trust,  In  re  477 

De  Themmines  v.  De  Bonneval       702, 

715,  718,  726,  741 

Deuter  v.  Deuter  144 

De  Vaughn  v.  Hutchinson  358 

Devaynes  v.  Robinson      768.  800,  822. 

823,  845,  878 

Devenish  v.  Baines  169,  181,  182 

Devey  v.  Thornton  901,  927 

Devin  v.  Henderchott  321 

Devine  v.  Devine  132 

De  Vinney  v.  Norris  202 

V.  Reynolds  783 

De  Visne,  In  re  144 

Devon's  Settled  Estates,  In  re         383 

Devoy  v.  Devoy  144,  147 

Dewall  V.  Covenhoven  629,  654 

Dewdney,  Ex  parte  228,  481,  855 

De  Weever  v.  Rockport  623 

Dewey  v.  Adams  591 

V.  Littlejohn  591 

V.  Long  126 

Dewey's  Ex'rs  v.  Rugglea  795 

De  Witt  V.  Cooper  553 

V.  Eldred  643 

De  Wolf  V.  Chapin  585 

Dexter  v.  Arnold  228 

V.  Cotting  282 

V.  Evans  112 

V.  Gardner  705,  706,  724,  737, 

748 

V.  Harvard  College  700,  710 

V.  McDonald  79,  86 

V.  Phillips  556 

V.  Stewart  231 

Deys  V.  Van  Valkenberg  602  i 

Dezendorf  v.  Humphreys  647,  671 

Dial  V.  Dial  518,  890 

Dias  V.  Brunell  843 

Dibble  v.  Mitchell  237 

Dibbs  V.  Goren  931 

Dick  V.  Dick  79 

V.  Harby  248,  493,  503 

V.  Pitchford     386  a,  555,  646,  652, 

653   921 

Dick's  Estate  443,  446,  462^  468 

Dickason  v.  Fisher  232,  237,  238 

Dickel  V.  Smith  797,  800 

Dickens  v.  McKinley  84 

Dickenson  v.  Davis  143 

Dickerman  v.  Abrahams  660 

Dickerson  v.  Carroll  815  c 

V.  Smith  175 

Dickerson's  App.  86,  104 

Dickinson,  Ex  parte  332 

V.  Chase  238 


Dickinson  v.  Coates 

V.  Cod  wise 

V.  Conniff 

V.  Dickinson 

V.  Hoomes 

V.  Player 

V.  Shaw 

V.  Teasdale 
Dickinson,  Appellant 
Dickson,  In  re 

V.  Kittson 

V.  Lockyer 

V.  Montgomery 


87 

127,  129 

526 

76,  682,  772 

71 

454 

145 

863 

452,  459 

616 

596 

225 

724,  728,  731, 

748 

V.  N.  Y.  Biscuit  Co.  510,  783, 

790,  800 

V.  Stewart  171,  206 

Dickson's  Trust  555,  930 

Diefendorf  v.  Spraker         268,  401,  921 

Dietterich  v.  Heft  471 

Diffenderffer  v.  Winder  463,  468, 

471,  472,  918 

Digby  V.  Irvine  658 

Digges's  Case  511  b 

Diggles,  In  re  112 

Diggs  V.  Walcott  72 

Dike  V.  Ricks  785,  789 

Dilkes  V.  Broadmead  932 

Dill  V.  McGehee  843 

Dillard  v.  Crocker  126,  219,  221 

V.  Dillard  149,  493,  503 

V.  TomHnson  402,  468 

Dillaway  v.  Boston  Gas  Light  Co.    760 

Dillaye  v.  Commercial  Bank     218,  225 

V.  Greenough  95,  158 

Dillcr  V.  Brabaker  851 

Dillinger  v.  Llewelyn  97 

DiUingham  v.  Martin         248,  503,  920 

V.  Traders'  Ins.  Co.  438,  926 

Dillon  V.  Bone  100 

V.  Coppin      97,  98,  100.  103,  107, 

111 

11.  Grace  656 

Dilworth  v.  Rice  500 

Dimes  v.  Scott  402,  422,  450,  467, 

547,  548,  549,  551,  847 

Dingman  v.  Beal  263,  511 

Dinn  v.  Grant  231 

Dinsmore  v.  Biggert  318,  319 

V.  Racine  757 

D'Invernois  v.  Leavitt  690 

Dinwiddie  v.  Bailey  871 

Dipple  V.  Corles  86,  97 

Disbrow  v.  Disbrow  276,  477,  912 

Disher  v.  Disher  97 

Dismukes  v.  Shafer  661 

V.  Terry  137 

Dissenger,  Re  613 

Dittmar  v.  Gould  386  a 

Dix  V.  Akers  874 

V.  Burford  263,  417,  419 

V.  Cobb  438 

V.  Read  272 

Dixon  J).  Caldwell  211,218 

V.  Dixon  238,  640,  865 

V.  Gayfere  235 

V.  Hill  221 

V.  Homer  276,  287,  918 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


1X111 


Dixon  V.  Horner  272 

V.  MfCue  456 

V.  MUler  661,  075 

V.  Olmius  181,  648 

V.  Saviile  323 

V.  Smith  817 

Dixon,  Estate  of  99,  299 

Doane  v.  Dunham  137 

Dobbins  v.  Stevens  202 

Dobson  V.  Land  431,  437 

I'.  Lead  beater  219 

V.  Pearce  72 

I'.  Raccy       195,  197,  199,  206,  228 

Docker  v.  Somes  427,  429,  430, 

454,  464,  470 

Doekey  v.  McDonald  914 

V.  McDowell  456 

Dockins  v.  Vaas  619 

Docksey  v.  Dockaey  150 

Dod  V.  Dod  361 

Dodd  V.  Geiger  642 

V.  Wake  380,  383 

V.  Winship  927 

Dodds  V.  Hills  829 

Dodge  V.  Cole  127 

V.  Dodge  297,  503 

V.  Essex  Ins.  Co.  855 

V.  Hogan  568 

V.  Hollinshead  685 

V.  Manning  576 

V.  Pond  748 

V.  Stevens  195,  816  a 

V.  Tulleys  873 

V.  Williams  391,  448 

V.  W^oolsey  816 

Dodkin  v.  Brunt  38,  240 

Dodson  V.  Ashley  498 

V.  Ball  304,  311,  320,  652 

V.  Dodson  366 

V.  Hay  323,  324,  371 

V.  Samnell  455 

V.  Simpson  225,  810 

Doe  V.  Aldridge  703 

V.  Bennett  338 

ti.  Biggs  297,  305,  306 

V.  Cafe  308,  315,  357 

V.  Cavan  511  6 

V.  Claridge  308,  310,  312,  317 

V.  Collier  298 

V.  Cook  355 

V.  Copesteak  703 

V.  Duval  602  h 

V.  Edlin  305 

V.  Ewart  305 

V.  Field  304,  312 

V.  Godwin  414,  505 

V.  Halcombe  530 

V.  Hardwicke  530 

V.  Harris  261,  267,  270 

V.  Hawthorne  702 

V.  Hicks  312,  319 

V.  Hilder  349 

V.  Hole  530 

V.  Homfray  305,  313 

V.  Howella  698,  699 

V.  Howland  315 

V.  Hughes    501,  697,  802,  803,  805 

r.  Ironmonger  305 


Doe  V.  Keen 

871 

V.  Keir 

511  6 

V.  Langdon 

349 

V.  Lightfoot 

338 

V.  Lloyd 

354 

V.  Martin 

785 

I'.  Nepeau 

929 

V.  Nichols 

311 

V.  Pa.ssingham 

301.  304 

V.  Phillips 

866 

V.  Pitcher 

706 

V.  Pratt 

670 

V.  Price 

346 

r.  Read 

350 

r.  Roake 

511  c 

V.  Robinson 

408,  602  k.  602  aa 

V.  Roe 

490 

V.  Routledge 

165,  .303 

V.  Scott 

305 

V.  Scribner 

592 

V.  Simpson 

308,  313 

V.  Smeddle 

312 

V.  Smith 

270 

V.  Stace 

809 

V.  Steaple 

353 

V.  Stephens 

529,  530 

V.  Sy bourn 

349,  350,  351,  352. 

355 

r.  Thorley  5116 

V.  Vincent  511 c 

V.  Walbank  308 

V.  Walker  93 

V.  Willan  308,  312,  318 

V.  Williams  530 

V.  Woodhouse  313 

V.  Wrighte  352,  355 

Doebler's  App.  358 

Doering  v.  Doering  843 

D'Ocschcner  v.  Emerson  171,  230 

V.  Scott  670 

Doggett  V.  Hart  17,  328 

V.  Lane  204 

Doherty  v.  Grady  550,  575 

Dolan  V.  Mayor  of  Baltimore  768 

V.  McDermot  699,  705 

Dolbiac  v.  Dolbiac  665 

Dold  V.  Geiger  628 

Dolder  ?j.  Bank  of  England  826 

Dole  V.  Lincoln  87 

V.  Wilson  866 

Dollinger's  Appeal  77 

Dolliver  v.  Dolliver  828 

Dolman  v.  Nokes  179 

Domestic  &  F.   Mis.  Society  v. 

Gaither  729 

Dominick  v.  Michael  34,  499.  500 

V.  Sayre  250,  414 

Dommett  v.  Bedford  388,  555 

Donahoe  v.  Chicago  Cricket  Club    202 

V.  Conrahv  83 

Donalds  v.  Plumb  347.  660 

Donaldson  v.  Allen  71,  404.  409. 

520.  920 

V.  American  Tract  Soc.       391.  748 

V.  Donaldson         98,  100,  102,  105 

V.  Pusey  918 

V.  West  Bank  640 

Doncaster  v.  Doncaater     359,  372,  373 


Ixiv 


Donegal's  Case 
Doniphan  v.  Paxton 
Donisthorpe  v.  Porter 
Donlin  v.  Bradley 
Donne  v.  Hart 

V.  Lewis 
Donohuc  V.  Chase 
Donovan  v.  Griffith  ' 
D'Ooge  V.  Leeds 
Doolan  v.  Blake 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


189 

602  # 

348 

126 

633 

563 

602  s 

144,  678 

545 

670 


Doolittle  V.  Lewis        500,  602  g,  602  n, 

602  ee 

Dooly  V.  Pinson  133.  137,  206 

Doom  V.  Howard  918 

Doran  v.  Doran  75 

V.  Simpson  225 

V.  WUtshire  697,  776,  794,  796 

Dorance  v.  Scott  661 

Dorchester  v.  Effingham  390,  443 

Doremus  v.  Lewis  591 

Dorland  v.  Dorland  499,  501 

Dorman  v.  Dorman  147,  865 

Dormer  v.  Fortescue  871,  872 

V.  Thurland  511  6 

Dornford  v.  Dornford        468,  472,  847 

Dorr  V.  Clapp  312 

V.  Davis  127 

V.  Wainwright  262,  263,  574 

Dorrah  v.  Hill  828 

Dorrance's  Estate  918 

Dorris  v.  Miller  446,  462,  468 

Dorschen  v.  Wyckoff  59,  347 

Dorsett  v.  Dorse tt  555 

V.  Clarke  126,  133,  135 

V.  Dorsey  209,  918 

V.  Garcey  15,  843 

V.  Gilbert  610 

V.  Thompson  275 

V.  Wolcott  189 

Doswell  V.  Anderson  118,  386  a 

V.  Buchanan  221 

Doty  V.  Mitchell  655,  661 

V.  WUson  100 

Dougan  v.  Bemis  75,  206 

V.  Macpherson  194,  195 

Dougars  v.  Rivaz  742 

Dougherty  v.  Shillingsburg  97 

Douglas  V.  Bolam  286 

V.  Corry  863 

V.  Cruger  920 

t.  Miller  815  c 

Douglass  V.  Allen  597 

V.  Andrews  613 

V.  Archbutt  432,  904 

V.  Browne  402 

V.  Congreve  369,  651 

V.  Culverwell  202 

V.  Horsefall  874 

V.  Lucas  141 

V.  Price  143 

V.  Russell  68 

V.  Satterlee  421 

V.  Stephenson's  Ex'or  443 

Dounce  v.  Parsons  846 

Douthit  V.  Nabours      199,  602  v,  602  w 

Douthitt  V.  Stinson  890  a 

Dove  V.  Everard  261 

Dover,  Ex  parte  263,  281 


Dover  v.  Gregory  570 

V.  Kennedy  780 

V.  Denne  402,  415,  417,  418 

V.  Rhea  79 

Dover  Coalfield  Extension,  In  re     427 

Dow  !;.  Dawson  438 

V.  Jewell       126,  132,  140,  141,  865 

V.  Platner  590 

Dow's  Petition  610 

Dowd  V.  Tucker  171,  181,  182 

Dowell  V.  Dew  656 

Dowling  V.  Belton  611 

V.  Feeley  209 

V.  Hudson  795 

V.  Maguire  663,  667,  658 

Dowman  v.  Rust  569,  570,  796 

Down  V.  Morris  327,  435 

V.  Worrall  714,  721,  731 

Downer  v.  Church  152 

V.  Downer  507 

I).  So.  Royalton  Bank        438,  831, 

926 

Downes  v.  Bullock  851,  932 

V.  Grazebrook  128,  195,  347, 

770,  786 

V.  Harper  Hospital  710,  747 

V.  Hodgson  931 

V.  Jennings  183,  208 

V.  Thomas  883 

V.  Timperon  656 

Downey  v.  Bullock  618 

Downin  v.  Sprecher  610 

Downing  v.  Hartshorn  195,  431 

V.  Marshall  894 

V.  Townsend  109 

Downs  V.  Richards  129 

Doyle  V.  Andis  358 

V.  Blake      259,  261,  262,  264,  268. 

401,  403,  421,  422,  914,  927 

V.  Coyle  511  c 

V.  Peerless  246  a 

V.  Sleeper  126,  149 

V.  Whalen  722,  728,  729,  748 

Doyley  v.  Att.-Gen.  249,  255,  258, 

503 

D'Oyley  v.  Loveland  598 

Doyly  V.  Sherratt  411 

Dozier  v.  Dozier  476  a 

V.  Logan  594,  819 

Drake  v.  Crane  466,  458 

V.  Drake  261,  371 

V.  Moore  602  dd 

V.  Paige  248,  501 

V.  Pywall  17 

V.  Rogers  592 

V.  Steele  305 

V.  Whitmore  768 

V.  Wild  863 

V.  Wilde  200,  861,  864,  923 

Drakeford  v.  Wilks  226 

Drane  v.  Dayliss  500 

V.  Gunter         268,  274,  336,  602  m 

Draper  v.  Minor  275 

V.  Montgomery  414,  499,  502 

V.  Stoae  844 

Drapers*  Company  v.  Davis  203 

Drasier  v.  Brereton  96,  417,  447 

Drayton  v.  Drayton  601 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Drayton  v.  Grimke  500 

V.  Pocock  764,  770,  787,  807 

Drennen  v.  Walker  215 

Dresser  v.  Dresser  112 

V.  Travis  99 

Drover  v.  Mawdesley  600 

Drew  I'.  Martin  144 

V.  Norbury  223 

V.  Wakefield  891,  899 

Dring  v.  Greetham  481 

Drinkwater  v.  Combe  348 

Driscoll  V.  Hewlett  706 

Driskill  v.  Rebbe  602  i 

Driver  v.  Fortner  602  o,  602  cc 

Drohan  v.  Drohan  484,  809 

Drovers'&  M.  Nat.  Bank  r.  Roller    828 

Drown  v.  Smith  540 

Druce  v.  Denison  635 

Druid  Park  Heights  Co.  v.  Oet- 

tinger  249,  508 

Drummond  v.  St.  Albans  872 

V.  Tracy  49,  50 

Drury  v.  Connor  245 

V.  Cross  207 

V.  Drury  34 

V.  Hook  214 

V.  Natick  500,  700,  724,  748 

V.  Scott  626,  668 

V.  Smith  87 

Drusadow  v.  Wilde  511  c,  783 

Dry  Goods  Co.  v.  Gideon  195,  197 

Dryden  v.  P>ost  238 

V.  Hannaway  133 

Dryden  Ad.  v.  Stephens  770 

Drysdale's  Appeal  205,  918 

Duberly  v.  Day  633 

Dubless  V.  Flint  826,  827 

Dublin  Case        42,  732,  733,  734,  744, 

745,  748 

Dubois,  Ex  parte  332 

V.  Barbour  510,  511,  511  a 

V.  Hall  232 

V.  Van  Valen  768 

Dubose  V.  Dubose  602 

DuBree  v.  Albert  322 

Dubs  V.  Dubs  323,  324,  652 

Ducie  V.  Ford  79 

Ducker  v.  Burnham  252 

Duckett  V.  National  M.  Bank  122, 

828,  860 

V.  Skinner  610 

Duckworth  v.  Jordan  448 

V.  Ocean  S.  Co.  402,  417 

Dudgeon,  In  re  730 

V.  Connley  988 

Dudley,  Ex  parte  613 

V.  Batchclder  133 

V.  Bosworth         139,  143,  146,  147 

V.  Dudley  132,  213 

Duff  V.  McDonough  223 

V.  Wilson  211 

Duffey,  In  re  82 

Dufford  !'.  Smith        453,  554,  918,  919 

Duffy  V.  Calvert  284,  598,  602  m, 

787,  791,  796,  797 

V.  Duncan  468,  918 

V.  McGuiness  347 

V.  Masterson  134 


Duffy's  Trust,  In  re 
Dugan  V.  Vattier 
Dugas  V.  Gilbeau 
Dugdale,  In  re 
V.  Dugdale 
Duggani  V.  Kelly 
Duggan  V.  Slocum 


Ixv 


634 

221 

204,  205 

377,  386,  388 

903  o 

515 

700,  709,  741 


Du  Hourmelin  v.  Sheldon  64 

Duke  V.  Clarke  438,  831,  926 

V.  Fuller  705,  710,  730,  748 

Duke's  Heirs  v.  Duke's  Devisees     647, 

653 
Duke  of  Norfolk  v.  Brown  161 

Duke  of  Norfolk's  Case  377,  379,  382, 

383 

Dulaney  v.  Willis  95 

Dullcs's  Estate  694,  712,  729,  748 

Dumas,  Ex  parte  345 

Dunmier  v.  Chippenham  42,  511  a 

V.  Pitcher  144,  146,  162 

Dumoncel  v.  Dumoncel  64 

Dumond  v.  Magee  627,  629 

Dunbar,  In  re  77,  83 

V.  Meyer  680,  686 

V.  Tredennick  206,  217,  828 

V.  Woodcock  451 

Duncan  v.  Camberlayne  438 

V.  Campbell  634 

V.  Findlater  744,  914 

V.  Forrer  136 

V.  Jaudon  225,  814 

V.  Johnson  221 

V.  McCalmont  72 

Duncan's  Appeal  213 

Dunch  V.  Kent  428,  585,  593,  597, 

795,  796 

Duncklee  v.  Butler  397 

Duncomb  v.  N.  Y.  H.  &  No.  R.  R. 

Co.  129 

Duncombe  v.  Alston  480,  487 

Duncommer's  Appeal  417,  419 

Dundas  v.  Biddle  48,  511  b 

V.  Blake  559 

Dungannon  v.  Smith  385,  389 

Dunglison's  Estate  252,  254 

Dunham  r.  Chatham  75 

V.  Isett  757 

V.  Milhous  539 

V.  Presby  21 

V.  Waterman  590 

Dunkley  v.  Dunkley         626,  632,  635, 

636 

Dunklin  v.  Wilkins  69 

Dunlap  ('.  Harrison  65 

V.  Mitchell  196,  205,  428 

V.  Plumb  655 

Dunlop  V.  Burnett  232,  239 

V.  Dunlop  85 

V.  Hepburn  55 

V.  Hubbard  891 

Dunman,  Ex  parte  780 

Dunn  V.  Berkshire  82 

V.  Chambers  187,  188.  189 

V.  Dunn      195,  406,  453,  455.  460, 

463,  847,  864 

V.  Ralev  95 

V.  Record  202 

V.  Sargeant  639 


Ixvi 


INDEX   TO    CASES    CITED. 
(References  are  to  sections.] 


Dunn  V.  Seymour  873 
Dunnage  v.  WUte  167,  184,  185 
Dunne  v.  Dunne  457,  552 
Dunnica  v.  Coy  164 
Dunning  v.  National  Bank        500,  501 
V.  Ocean  Nat.  Bank  260,  264 
r.  Pike  686 
Dunscomb  v.  Dunscomb  240,  462, 
468,  900 
V.  Greenacre  629,  633 
Dunster  v.  Glengall  438 
Dunwoodie  v.  Reed  523 
Duplex  V.  Roe  295 
Dupont,  Ex  parte  55 
V.  Johnson  612 
Dupre  V.  Thompson  98 
Durand  v.  Durand  672 
V.  Higgins  97 
Durant  v.  Jltley  672 
V.  Lalley  639 
V.  Ritchie  32,  299,  301 
z).  Smith  112 
Durfee,  In  re  276 
Durham  v.  Crackles  633 
Darling  v.  Hammer  429 
Durnford  v.  Lane  34 
Durour  v.  Motteux  701,  706 
Durpee  v.  Pavitt  142 
Durr  V.  Bowyer  627,  632 
Durrett  v.  Com'th  459 
Dustan  v.  Dustan  901 
Dutch  Church  v.  Mott  349,  351 
Dutch  Reformed  Church  v.  Ban- 
don  393 
Dutton  V.  Cotton  602  p,  602  q 
V.  Morrison  587,  590 
V.  Poole  181,  182 
Duval  V.  Getting  110 
Duval's  App.  768 
Du  Val  V.  Marshall  133 
Duvall  V.  Bibb  232,  239,  299 
V.  Covenhoven  843 
V.  Farmers'  Bank  627,  632 
T.  Graves  647 
D wight  V.  Pomroy  226 
V.  Scranton,  etc.  Lumber  Co.    586 
Dw-yer  v.  Cahill  276  a,  392 
V.  O'Connor  127 
Dye  V.  Beaver  Creek  Church  722,  729, 

748 

Dyer  v.  Clarke  322 

V.  Dyer       126,  143,  145,  146,  161, 

162,  611 

V.  Jacoway  836 

V.  Leach  269,  276,  282,  341 

V.  Potter  891 

V.  Riley  415 

V.  Shurtleff  199 

Dyer's  App.  82 

Dyett  V.  Central  Trust  Co.  305 

V.  Coal  Co.  655,  660 

Dykes  v.  McVay  849 

Dyott's  Estate  463,  468,  918 


E. 


Eade  v.  Eade 
Eager  v.  Barnes 


112,  113,  116 
418,  846 


Eagle  Fire  Company  v.  Lent  33 

Eakle  v.  Ingram  920 

Eales  V.  England  112,  116,  325 

Eames  v.  Hardin  126 

V.  Wheeler  98 

Earl  of  Bath's  Case  171,  180 

Earl  of  Bute  v.  Short  112 

Earl  of  Darlington  v.  Putney  511  6 
Earl  of  Egmont's  Trusts,  In  re  487 
Earl  of  Oxford  i'.  Albemarle  768 

Earl  of  Winchilsea's  Policy  Trusts, 

In  re  845,  909 

Earle  v.  Earle  260,  417 

V.  Huntingdon  858 

V.  Wood  705,  724,  733,  748 

Earle's  Trusts,  In  re  93 

Earlom  v.  Saunders  461 

Early  v.  Doe  602  r 

V.  Early  591,  602 

Earnhart  v.  Earnhart  358 

Earnshaw,  In  re  282 

Earp's  Appeal  299,  305,  544,  545 

Will  556 

Ease  V.  Howard  298 

East  V.  East  440 

V.  Lowndes  395 

V.  Ryall  747,  901 

V.  Twyford  359,  372 

East  Greenstead's  Case  830 

Easterbrooks  v.  Tillinghast      160,  724, 

748 

Easterly  v.  Barber  246 

V.  Keney  386  a 

Eastern  R.  R.  Co.  In  re  280 

Eastham  v   Roundtree  127 

Eastman  v  Cooper  814 

V.  Davis  468,  864 

Easton  v.  Carter  262 

Eaton  V.  Eaton  75,  77 

V.  George  686 

V.  German  Bank  602  o,  602  w 

V.  Green  226 

V.  Landor  900,  902 

V.  Smith  273,  284,  290,  294, 

497,  507,  508,  721 

V.  W^ason  680 

V.  Whiting  602  66,  602  d 

V.  Wits  115 

Easy  Payment,  etc.  Co.  v.  Vonder- 

hide  493 

Eaves  v.  Hickson  402,  851,  929,  931 
Ebberts's  App.  127 

Eberhardt  v.  Perolin  112,  116 

Eberts  v.  Eberts  200 

Ebrand  v.  Dancer  54,  130,  144 

Eccleston  v.  Skelmersdale  876 

Echliff  V.  Baldwin  602  ee 

Echols  V.  Dimik  602  dd 

Eckels  V.  Stewart  304 

Eckford  v.  De  Kay  468,  606 

Eddleston  v.  CoUins  52 

Eddowes,  In  re  252 

Eddy  V.  Hartshorne  121 

V.  Smith  602  if 

V.  Traver  238 

Edelen  v.  Edelen  679 

Eden  v.  Foster  734,  742 

Edgar  v.  Donnally  127 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Ixvii 


Edge  V.  Salisbury  25G 

KdRcll  V.  Haywood  570 

EdKorly  V.  Barker     251,  371,  377,  380, 
381,  392 

Edghill  V.  Mankey  484 

Edgiugton  v.  Williams  149 

Edie  V.  Applegate  818 

Edmands  v.  Bird  189 

V.  Crenshaw       205,  418,  422,  432, 

918 

V.  Dennington  653 

V.  Peake  444,  780 

V.  Townshend  G30 

Edmeston  v.  Lyde  594 

Edminster  v.  Higgins  232 

Edinondson  v.  Dyson  359,  370 

V.  Walsh  602  t,  602  w 

Edmund's  App.  310  a 

Edson  I'.  Bartow  159,  160,  181 

Edwards  v.  Bates  843 

II.  Bender  279 

V.  Bohannon  238 

V.  Burt  188 

V.  Carter  34 

V.  Edwards  126,  133.  144, 

450,  476  a,  548,  551 

V.  Fashion  136 

V.  Field  144 

V.  Freeman  17,  577 

II.  Graves  17,  249 

V.  Grove  615 

V.  Hall  709 

V.  Harvev  747,  774,  891 

V.  Hood-Bars  848,  876 

V.  Jones  97,  98,  101 

V.  Lewis  196 

V.  Lowndes  17 

V.  MejTick  197,  202 

V.  MUlbank  529 

V.  Morgan  871,  872 

V.  Pike  216 

V.  Roberts  228 

V.  Sheridan  639 

V.  Tuck  397,  584 

V.  Warwick  367 

V.  Williams  864 

Eedes  v.  Eedes  633,  634 

Effray  v.  Effray  672,  673 

Efland  v.  Eflaud  324 

Egbert  v.  Brooks  910,  916 

V.  Butler  419,  424,  440 

V.  De  Solms  96,  386  a,  815  a, 

827  a 

V.  Schultz  380 

Ege  V.  Hering  729,  748 

Egerton  v.  Brownlow  359,  380 

V.  Carr  99 

V.  Conkiin  500 

V.  Egerton  900 

Eglin  V.  Sanderson  900 

Egmont  V.  Smith  877 

Ehlen  v.  Ehlen  275 

V.  Mayor  of  Baltimore       848.  849 

Eichelberger  v.  Barnitz  380,  541,  547 

Eichelberger's  Estate  550,  575 

Eidsforth  v.  Armistead  802,  803,  805 

Eipper  v.  Benner  82 

Eisert  v.  Bowen  129,  206 


Eisner's  Appeal  645 

Ela  V.  Brand  613 

Eland  v.  Baker  768 

V.  Eland      697,  796,  800,  801,  802, 

810 

Elborne  v.  Goode  307,  903  a 

Elder,  Ex  parte  065 

Eldred  v.  Meek  392 

Eldredge  v.  Heard  248,  510,  511 

V.  Knott  866 

V.  Preble  676,  677 

V.  Smith  195,  199 

Eldridge  v.  Putnam  882 

Electric  Light  Co.  v.  Gas  Co.  232,  237 

Eley  V.  Shank  358 

Eley's  Appeal  640,  546 

Elias  V.  Loeb  511  a 

V.  Schweyer  275,  875 

Elibank  v.  Montolieu  629,  635 

Elijah  V.  Taylor  679 

Elizalde  v.  Elizalde  828 

Elkins  V.  Tresham  173 

Ellenborough  v.  Canterbury     891,  894 

Eller.son  v.  Westcott  181 

EUett  V.  Paxson  780 

Ellice,  Ex  parte  467 

Ellicombe  v.  Gompertz  380 

Ellicott  V.  Barnes  122 

V.  Chamberlin  209 

V.  Welch  239 

EUing  V.  Naglee  918 

Elliot  V.  Ince  35 

Elliott  V.  Armstrong  126,'137,  139,  347 

V.  Boaz  174 

V.  Connell  226 

V.  Cordell  626,  634 

V.  Deason  520 

V.  Edwards  236,  239 

V.  Elliott       54,  117,  143,  145,  146, 

147,  151,  161,  851 

V.  Fowler  610 

V.  Hancock  569,  570 

V.  Hart  149 

r.  Lewis  880 

V.  Merriman       597,  698,  790,  795, 

796,  798,  802,  810,  814, 

867 

V.  Pool  195 

V.  Sparrell  263,  468,  471 

V.  Waring  632 

V.  Wood     199,  602  d,  602  g,  602  p, 

602  » 

Elliott's  Executors,  Appeal  of  101 

Ellis  V.  Allen  206 

V.  Aniason  438 

V.  Atkinson  670 

V.  Baldwin  639 

V.  Barker  427.  433,  900 

V.  Boston,  Hartford,  &  Erie 

R.  R.  Co.  273,  284 

V.  Ellis  113,  253,  901,  908 

V.  Essex  Merrimack  Bridge         98 

r.  Fisher  312,  315 

V.  Guavas  243 

V.  Hill  79 

r.  Kenyon  680 

V.  Maxwell  395,  397 

r.  Nimmo  107,  108,  109 


IXVlll 


INDEX   TO    CASES    CITED, 

[References  are  to  sections.] 


Ellis  t).  Selby  161,159,711,712 

V.  Soper  613 

V.  Wooda  648 

Ellis's  Trusts,  In  re  671 

Ellison  V.  Airey  569 

V.  Ellison        96,  98,  100,  104,  107, 

367 

V.  Elwin  626 

0.  Moses  828 

V.  Woody  546 

Ellison's  Trust,  In  re  270,  271 

Ells  V.  Lynch  385 

Ellsworthy  v.  Hinds  640 

Elmendorf  v.  Beirne  234,  238 

V.  Lansing  418 

V.  Taylor  228,  855 

Elmer  v.  Scott  694,  724 

Elmlie  v.  McAulay  225 

Elmore  v.  Johnson  202 

Elmore's  Trusts  451 

Elms  V.  Hughes  639 

Elmsley  v.  Young  257 

Elmslie  v.  Thurman  238 

Elrod  V.  Cochran  144,  147 

V.  Smith  602  w 

Elsee,  Ex  parte  910 

Elsey  V.  Lutyens  47,  891 

Elstner  v.  Fife  259,  500 

Elthan  Parish  v.  WarrejTi  704 

Elton  V.  Elton  375 

V.  Harrison  501,  802 

V.  Shepherd  318,  655 

Elwell  V.  Chamberlain  172 

El  worthy  v.  Bird  672,  673 

V.  Wickstead  633 

Elwyn  V.  Williams  641 

Ely  V.  Att'y-Gen.  728 

V.  Cook  591 

V.  Hair  590 

V.  Turpin  602  o 

Emblym  v.  Freeman  157 

Emelie  v.  Emelie  455 

Emerick  v.  Emerick  229 

Emerson  v.  Cutler  920 

V.  Galloupe  206 

V.  Spicer  608 

Emery  v.  Batchelder  452,  459,  466 

Emery  v.  Chase  299 

V.  Grocock  349,  352 

V.  Haven  511  c 

V.  Hill  741 

Emigh  V.  Earling  828 

Emmet  v.  Clarke  286 

V.  Dewhirst  184 

V.  Emmet  471 

Emmons  v.  Cairns  641,  547 

V.  Shaw  252,  254 

Emperor  v.  Rolfe  580 

Encking  v.  Simmonds  602  h,  602  z 

Ender's  Ex'r  v.  Tasco  115 

Enders  v.  Public  Works  754 

Endicott  v.  Univ.  of  Va.  386 

Endress  v.  Willey  99 

Enfield  Toll  Bridge  v.  Hartford        757 

England,  In  re  613,  618 

V.  Downes  213,  267,  901 

V.  Slade  349,  351,  355 


Englar  v.  Offutt 

828,  846 

English  V.  Lindley 

222.  830 

V.  Mclntyre 

454,  847 

V.  Miller 

72 

V.  Rainear 

223 

V.  Russell 

232 

Ennis  v.  Leach 

602  aa 

Enniss  v.  Smith 

611  c 

Enos  V.  Hunter 

137 

Ensley  v.  Balentine  126,  128,  134,  135, 

137 
Entwistle  v.  Markland  550 

Eoff  V.  Irvine  202  b 

Episcopal  Church  v.  Wiley  71 

Erhardt  v.  Baltimore  Mo.  Meeting 

729,  748 

Erickson  v.  Willard  112,  248 

Erie  School  Dist.  v.  Griffith      429,  468 

Erisman  v.  Directors  of  Poor  511  a 

Ernest  v.  CroysdiU     839,  840,  859,  860 

Errat  v.  Barlow  616,  619 

Errington,  Re  395 

V.  Chapman  616,  619 

V.  Evans  245 

Erskine  v.  Townsend  226 

V.  Whitehead  728,  729,  748 

Erskine's  Trusts  634 

Ervin's  Appeal  610,  783 

Erwin  v.  Hall  815  c 

V.  Parham  187,  188 

V.  Seigling  918 

Escheator  v.  Smith  65,  310 

Eschrich,  In  re  429 

Esham  v.  Lamar  187 

Eshbach's  Estate  96,  103 

Eshelman  v.  Lewis  127 

V.  Shuman  641 

Eskridge  v.  McClure  232,  239 

Espey  V.  Lake  194 

Espin  V.  Pemberton  222 

Essex  V.  Atkins  663,  667 

Essex  County  Bank  v.  Harrison       223 

Estabrook  v.  Earle  686 

Estes  V.  Tillinghast  104 

Estwick  V.  Callaud  590 

Etches  V.  Etches  386,  386  a,  555 

Etting  V.  Bank  of  U.  States      178,  179 

Etty  V.  Bridges  438 

Eubank  v.  Finnell  237 

Eufaula  Nat.  Bank  v.  Manasses       454 

European  R.  R.  Co.  v.  Poor      194,  207 

Eustace  v.  Seamen  298 

Evangelical  Ass'n's  App.  730,  733,  748 

EvangeHcal  Synod  v.  Schoeneich      828 

Evans  v.  Bagwell  593 

V.  Battle  97 

V.  Benyon  848 

V.  Bicknell  171,  438 

V.  Cheshire  188 

V.  Chew  500 

V.  Coventry  818 

V.  Davies  66 

V.  Ellis  202 

V.  Enloe  238 

V.  Evans  358,  373 

V.  Gibson  127 

V.  Gillespie  647 


INDEX    TO    CASES    CITED. 
[References  are  to  aections.] 


Ixix 


Evans  v.  Goodlett 

V.  Hellier 

V.  Iglehart 

V.  Jackson 

V.  John 

V.  Kingsbury 

V.  Kneeland 

V.  Knoar 

V.  Llewellyn         171 

V.  London 

V.  Massey 

V.  Potter 

V.  Russell 

V.  Scott 

V.  Secrest 

V.  Stokes 

V.  Tweedy 

V.  Weatherhead 
Evans's  Estate 
Evarts  v.  Nason 
Evelyn  v.  Templar 
Everett  v.  Carr  697, 

V.  Drew 

V.  Henry 

V.  Jordan 

V.  Peyton 

V.  Prytheregch 

V.  Texas  M.  Ry.  Co 
Everitt  V.  Everitt 
Evers  v.  Challis 
Everson  v.  Pitney 
Everston  3;.  May  hew 
Everts  v.  Agnes 

V.  Everts 
Evertson  v.  Tappan 
Evroy  v.  Nicholas 
Ewbank  v.  Paston 
Ewen  V.  Bannerman 

V.  Smith 
Ewer  V.  Corbett  226 

Ewers  v.  White's  Estate 
Ewing  V.  Buckner 

V.  Furness 

V.  Higby 

V.  Osbaldiston 

V.  Shannahan      269, 

V.  Warner 
Exel  V.  Wallace 
Exeter  v.  Exeter 

V.  Odiorne 
Exton  V.  Scott 
Eyre,  Re 

V.  Dolphin 

V.  Fitton 

V.  Marsden 

V.  Potter 

V.  Shaftesbury 


Eyrick  v.  Hetrick 
Eyton  V.  Eyton 


631 


232,  237 
584 

646,  547 
769 

259,  261 
499 
179 

647,  649 
,  184,  185,  192 

697 

615,  618,  619 

243 

104 

580 

640 

885 

558,  559 

358 

418,  419,  903 

863,  918 

107,  109,  111 

705,  720,  722, 

733 

815  6 

195 

279 

386  a 

275,  816, 818 

828 

104 

381 

918 

828 

220,  221 

521 

428 

53 

235,  239 

714 

655,  661 

,  809,  810,  812 

863 

259 

891 

774 

231 

,341,  858,  860 

104 

359 

186 

299,  305,  307 

103 

248,  254 

196,  538 

511  b 

160,  395,  397 

187 

414,  505,  603, 

,  694,  695,  724 

65,  259,  555 

183 


Fagan  v.  McDonnell  126 

Fagg's  Case  218 

Fahncstock  v.  Fahnestock  448 


Fair's  Estate  99,  299 

Fairbanks  v.  Lamson  701,  748 

V.  Sargent  438,  831,  926 

P'airchUd  v.  Edson      159,  181,  729,  748 
Fairfield  S.  Bank  v.  Small  82 

Fairhurst  v.  Lewis  148 

Fairman  v.  Bavin  206 

V.  Green  616,  618 

Fairtitle  v.  Gilbert  •  750 

Faison  v.  Odom  358 

Falk  V.  Turner  204,  210 

Falkland  v.  Bertie  871 

Falkner  v.  Equitable  Society  786 

V.  O'Brien  192 

V.  Wynford  248,  250 

Fall  V.  Simmons  471,  918 

Fallen,  In  Matter  of  54 

Falmouth  Bank  v.  Cape  Cod  Canal 
Co.  330,  520,  909 


Faloon  v.  Flannery 
Fambro  v.  Gantt 
Fane  v.  Devonshire 

V.  Fane 
Fanning  v.  Ker 

V.  Main 
Fansler  v.  Jones 
Fant  V.  Dunbar 
Farie's  Appeal 
Faris  v.  Dunn 
Farleigh  v.  Cadman 
Farley  v.  Blood 

V.  Bryant 

V.  Bucklin 

V.  Kittson 


253 
225 

189 

94 

602  d 

647 

138 

447 

652,  668 

137 

82 

127 

184,  186 

397 

206 


V.  St.  Paul,  M.  &  M.  R.  R.  Co. 

427 

V.  Shippen  64,  71,  131.  136 

Farlow  v.  Farlow  511  c 

Farmer  v.  Compton  517 

V.  Dean  780 

V.  Farmer  192 

V.  Lesley  591 

V.  Martin  611  a 

Farmers'  Bank  v.  Douglass       187,  590 

V.  King  127,  128 

V.  WajTnan  242 

Farmers'  Loan  &  Tr.  Co.,  Matter 

of  863,  864 

Farmers'  Loan  &c.  Co.  v.  Commer- 
cial Bank  759 
V.  Hendrickson  759 
V.  Hughes  275 
V.  Kip                                     383,  391 
V.  Lake  St.  Ry.  Co.             277,  885 
V.  Maltby                                         221 
Farmers'  Loan  &c.  Co.  v.  New  York 
&  N.  Ry.  Co.                                    242 
V.  Pendleton                           263,  281 
Farmers'  &  Merchants'  Ins.  Co.  v. 

Jensen  299 

Farmer's  Nat.  Bank  v.  Moran         312, 

520 
Farmers  &  Traders'  Bank  v.  Fidel- 
ity Tr.  Co.  122,  225,  810 
V.  Kimball  Milling  Co.      127,  128, 
132,  166 
Farnam  v.  Brooks     178,  195,  206,  210, 
230,  855,  863 


Ixx 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Farueyhough  v.  Dickerson  918 

Farnsworth  v.  Child  223 

V.  Doom  591,  602 

Farquharson  v.  Eichelberger  314 

V.  Seton  876 

Farr  v.  Farr  229,  230 

V.  Gilreath  300 

V.  Sherriffe  886,  888,  903  a 

Farrance  v.  Viley  624 

Farraiid  v.  Beshoar  79 

Farrant  v.  Blanchford  851 

Farrar  v.  Barraclough  457,  467 

V.  Farley  205 

V.  Powell  596 

Farrell  v.  Lloyd  137,  142 

V.  Smith  294,  928 

Farrelly  v.  Ladd  343,  843 

Farrier  v.  Games  891 

Farrigan  v.  Pevear  747 

Farringer  v.  Ramsey  126,  137 

Farrington  v.  Barr  162 

V.  Knightly  17,  154 

V.  Putnam  45,  715 

Farris  v.  Dunn  223 

Farrish  v.  Wayman  252 

Farwell  v.  Kloman  828 


Fassit  V.  Phillips 

592 

Fast  V.  McPherson 

212 

Fatheree  v.  Fletcher 

143 

Fat  jo  V.  Swasey 

286 

Faucett  v.  Faucett 

195 

205 

Faulkner  v.  Daniel 

347 

V.  Davis 

249 

V.  Hendy 

429 

Faust  V.  Faust 

95 

Fawcett  v.  Fawcett 

141,  144 

865 

V.  Gere 

212 

V.  Lowther 

327 

Fawell  V.  Heelis 

236 

239 

Fawkner  v.  Watts 

612 

Fay  V.  Fay  75,  132,  133,  308 

V.  Howe       471,  721,  729,  731,  748 

V.  Morrison  147 

V.  Petis  757 

V.  Slaughter  739 

V.  Taft  121 

Faylor  v.  Faylor  132,  865 

Feamster  v.  Feamster  195 

Fear  v.  Bartlett  242 

Fearey  v.  O'Neill  593 

Fearns  v.  Young        449,  450,  547,  549, 

910 

Fearon  v.  Desbrisay  511  a 

V.  Webb  23,  384 

Fears  v.  Brooks         646,  647,  649,  655, 

660 
Feather  v.  Feather's  Estate  661 

Featherstonaugh  v.  Fenwick    196,  453, 
470,  538 
Feedey's  App.  313 

Feeney  v.  Howard  181 

Fehlinger  v.  Wood  437  a 

Feistal  v.  King's  Gollege  69 

Felix  V.  Patrick  60,  855 

Felkner  v.  Dooley  863,  864 

Fell  V.  Brown  71,  72,  883 

V.  Lutwidge  900 

Fellows  V.  Dow  347 


Fellows  V.  Fellows  82,  95 

V.  Gwydyr  172 

V.  Heermans  95,  318,  334 

V.  Mitchell  411,  416,  446,  809,  849 

V.  Ripley  299 

V.  Tann  646 

Fellrath  v.  Peoria  G.  S.  Ass'n   848,  876 

Feltham  v.  Clark  438 

V.  Turner  511 

Felton  V.  Deal  757 

Female  Orphan Soc.  d.Y.M.C.A.  386 

Fendall  v.  Nash  619 

Fennell  v.  Loague  864 

Fenner  v.  Tucker  602  r 

Fennimore  v.  Fennimore  421 

Fenno  v.  Say  re  231 

Fenwick  v.  Chapman  571 

V.  Clark  574 

V.  GreenweU       248,  250,  260,  417, 

845 

Feoffees  of  Heriot's  Hosp.  v.  Ross  815  b 

Ferdey's  Appeal  313 

Ferebee  v.  Pritchard  213 

Ferebere  v.  Proctor  765 

Fergerson  v.  Fergerson  184 

Fergus  v.  Gove  601 

Ferguson  v.  Franklin  55 

V.  Hass  226 

V.  Livingston  862 

V.  Sutphen  133 

V.  Tadman  122 

V.  Williamson  172 

Ferneley's  Trusts,  In  re  671 

Ferraby  v.  Hobson  528 

Ferraria  v.  Vasconcellos  733 

Ferraris  v.  Hertford  93 

Ferrars  v.  Cherry  217,  828,830 

Ferres  v.  Ferres  189 

Ferrier  v.  Trepannier  437  a,  815  b 

Ferrin  v.  Errol  828 

Ferris  v.  Gibson  380 

V.  Henderson  229,  230 

Ferry  ».  Laible  121,5111) 

Ferson  v.  Sanger  173 

Fesmire  v.  Shannon  421 

Fesmire's  Estate  415,  417,  418 

Festing  v.  Allen  385 

Festorazzi  v.   St.  Joseph's  Cath. 

Church  715 

Fettiplace  v.  Gorges  655,  668 

Feversham  v.  Ryder  704,  709 

Fiddler  v.  Higgins  611 

Fidelity  Ins.  Co.'s  App.  903  a 

Fidelity  Tr.  Co.  v.  Lloyd  391,  392 

Field  V.  Arrowsmith  195,  240,  260, 

280.  602  e,  602  v 

V.  Brown  611 

V.  Donoughmore         593,  600,  927 

V.  Evans  20,  670 

V.  Field  738 

V.  Girard  College  734 

V.  Lonsdale  144,  165 

V.  Mayor  of  New  York  68 

V.  Moore  34 

V.  Peckett  439,  479,  570 

V.  Schieffelin       225,  608,  610,  809, 

812,  814 

V.  Sowle  658,  661 


INDEX    TO    CASES    CITED. 
[References  are  to  seotioiu.] 


Ixxi 


Field  V.  Wilbur 

V.  Wilson 
Field's  Mortgage 
Fields  V.  Gwynn 
Fifield  V.  Van  Wyck 


477.  526 
229,  230 
338 
655,  671 
448,  729,  748 


Fifth  National  Bank  v.  Hyde  Park 

815  c 
Fike  V.  Ott  133 

Filby  V.  Miller  218 

Filch  V.  Weber  157 

Filkius  V.  Severn  83,  95 

Fillingham  v.  Nichols  75 

Fillman  v.  Divers  127 

Fillmer  v.  Gott  189 

Finch  V.  Finch  126,  143,  145,  146,  147, 

452 
V.  Hollinsworth  250,  258 

V.  Marks  661 

V.  Raynad  918 

V.  Shaw  222 

V.  Winchelsea  108,  122 

Finch's  Case  13,  14,  76,  241,  346, 

347 

Finden  v.  Stephens  124,  907 

Findlay  v.  Riddle  359,  370 

V.  Smith  540 

Findley  v.  Findley  448,  611 

V.  Patterson  201 

Fink  V.  Fink  748 

Finlay  v.  Darling  122 

V.  Howard  275,  282 

V.  Merriman  404,  441 

Finley  v.  Hunter  715 

V.  Jones  891 

Finn  v.  Hohn  328 

Finney  v.  Cochran  863 

Finney's  Estate,  In  re  337 

Fire  &  Water  Com'rs  v.  Wilkinson    828 

Fire  Patrol  v.  Boyd  747 

Firmin  v.  Pulham  900 

First  Baptist  Church  v.  Harper        732 

First  Baptist  Society  in  Andover  v. 

Hazen  312,  520 

First  Congregational  Ch.  v.  Terry  195, 

431 
First  Congregational   Society  of 

Southington  t).  Atwater     43,46,714 
First  Constitutional   Presbyterian 

Church  V.  Cong.  Soc.  733 

First  Mortgage  Bondholders  v.  Mays- 

ville,  &c.  Railway  '759 

First  National  Bank  v.  Dwelley  815  b 

V.  Edgar  231 

V.  Hummel  328 

V.  Lee  766 

V.  Leech  828 

V.  Menke  596 

V.  Nat'I  Broadway  Bank    72,  225, 

328,  768,  800,  815  c 

V.  Owen  918 

V.  Perris  Ir.  Dist.  831 

V.  Salem  Capital  F.  M.  Co         238 

V.  Smith  594 

V.  Valley  State  Bank  122,  828 

V.  Wakefield  122 

First  Nat.  Ins.  Co.  v.  Salisbury       749, 

760,  873,  885,  886 

First  Parish  in  Sutton  v.  Cole  43 


First  Univ.  Soc.  v.  Roland        377,  380. 

384,  388.730 

Fischbeck  v.  Gross  181,  915 

Fischli  V.  Dumaresly  134.  206 

Fish  V.  Howland  232,  237 

V.  Miller  851 

V.  Prior  299 

V.  Wilaon  863 

Fishbourne,  In  re  806 

Fisher  v.  Bassett  602  ee 

V.  Boody  172 

V.  Dickenson  269,  341 

V.  Fairbanks  783 

V.  Fields  82,  312,  315,  320 

V.  Filbert  648 

V.  Fisher  556 

V.  Fobes  142 

V.  Hampton  Transp.  Co.       86,  97 

V.  Johnson  238,  239 

V.  Knox  438 

V.  Shropshire  232 

V.  Smart  918 

V.  Taylor  918 

V.  Webster  880 

V.  Wigg  920 

V.  Worth  594 

Fisher's  Will,  In  re  284 

Fisk  V.  Att.-Gen.  698,  706,  726 

V.  Keen  380 

V.  Sarber  196,  206,  209,  538 

V.  Stubbs  275 

Fisk's  Appeal  181 

Fiske  V.  Fiske  252 

V.  White  748 

Fitch  V.  Ayer  649 

V.  Fitch  188 

Fitchie  v.  Brown  380,  392 

Fitler  v.  Maitland  591 

Fitzer  v.  Fitzer  673 

Fitzgerald,  In  re  72,  386  a 

V.  Faucouberge  511  c 

V.  Field  580 

V.  Fitzgerald  901 

V.  Jervoise  771 

V.  Jones  908 

V.  O'Flahcrty  901 

V.  Peck  184 

V.  Pringle   453,  460,  461,  898,  901, 

902 

V.  Rainsford  192,  538 

V.  Standish  493 

V.  Topping  334 

V.  Vestal  68 

Fitzgibbon  v.  Blake  657,  671 

V.  Scanlan  196,  538 

Fitzpatrick  r.  Fitzgerald  17,  328 

V.  Fitzpatrick  602  r 

V.  Waring  484 

Fitzroy  v.  Howard  533 

Fitzsimmons  v.  Joslin  172,  179 

Flack  V.  Holm  72 

Flagg  V.  Ely  454 

V.  Mann  135,  218,  221,  226. 

602  d,  843,  844 

Flaherty  i'.  Kayser  223 

Flanagan  r.  Nolan  462.  900,  901 

Flanders  v.  Clark  249,  505,  51U 

Thompson  239 


Ixxii 


INDEX   TO   CASES   CITED. 

[References  are  to  sections.] 


Planner  v.  Butler 

V.  Fellows 
Flarty  v.  Odium 
Flavett  V.  Foster 
P'lawner  v.  Butler 
Fleet  V.  Borland 
Fleishman  v.  Woods 
Fleming  v.  Armstrong 

V.  Buchanan 

V.  Cuthbert 

V.  Donohoe 

V.  Gilmer 

V.  McHale 

V.  Page 

V.  Teran 

V.  Wilson 
Fletcher  v.  Ashburner 

V.  Ashley 

V.  Brainerd 

V.  CoUis 

V.  Fletcher  98, 

V.  Green      461,  847, 

V.  Peck 

V.  Stephenson 

V.  Walker 

V.  Willard 
Flickwir's  Estate 
Flinn  v.  Frank 
Flint  V.  Clinton  Co. 

V.  Hughes 

V.  Sheldon 

V.  Steadman 

V.  Warren 
Flood  V.  Ryan 
Florentine  v.  Barton 

V.  Wilson 
Flory  V.  Becker 

V.  Houck 
Flournoy  v.  Johnson 
Flowers  v.  Franklin 
Floyd  V.  Barker 

V.  Floyd 
Floyer  v.  Bankes 

ti.  Gilliam 

V.  Sherrard 
Flud  V.  Rumsey 
Fluke  V.  Fluke 
Flynn  v.  Flynn 
Foden  v.  Finney 
Fogarty  v.  Sawyer     602 
Fogg  V.  Bank 

V.  Middleton 
Foil  V.  Newsome 
Foley  V.  Burnell 

V.  Hill 

t).  McDonnell 

V.  Parry 

V.  Wontner  284, 

Foljambe  v.  Willoughby 
Folk  V.  Wind 
Follansbee  v.  Kilbreth 
Follett  V.  Badeau 

■V.  Follett 

V.  Tyrer 
Fonda  v.  Penfield 
Fontain  v.  Ravenell 


141 

Foose  V.  Whitmore 

112 

381 

Foote  V.  Bryant 

137,  142 

249, 

505,  510 

V.  Colvin 

126 

423 

V.  Cotting 

437  a 

147 

V.  Foote 

179 

554 

Foote's  App. 

545,  556 

863,  864 

Forbes  v.  Allen 

429,  468,  471 

671 

V.  Ball 

112,  248,  256 

573 

V.  Forbes 

704 

863 

V.  Hall 

223 

75,  143 

V.  Halsey 

205 

858 

V.  Lathrop 

815  o 

133 

V.  Linwood 

593 

828 

V.  Moffatt 

347 

205 

V.  Peacock          499, 

501.  597,  765, 

918 

786,  790,  795 

796,  800,  801, 

150 

802,  812 

213 

V.  Phillips 

639 

662 

V.  Ross                 453 

461,  462,  468 

454, 

467,  848 

V.  Ware 

429,  468,  471 

103, 

HI,  672 

Force  v.  Force 

286 

848, 

849,  876 

Ford  V.  Axelson 

222,  830 

218,  222 

V.  Battey 

119 

551,  924 

V.  Belmont 

765 

443. 

463,  900 

V.  Brown 

225 

226 

V.  Cook 

858,  890  a 

550,  575 

V.  Ford 

448,  706 

766 

V.  Hopkina 

837 

260, 

262,  264, 

V.  Lewis 

131 

602  e 

V.  Ryan 

794 

116 

V.  Thomas 

728 

302 

Forde  v.  Herron 

187,  602  z 

66 

Fordham  v.  Wallis 

932 

157 

Fordyce  v.  Bridges     248 

,251,  255,  603 

181 

V.  Willis        29,  75, 

76.  77.  86.  102 

610 

V.  Woman's  C.  N.  Ass'n             700 

672 

Forest  v.  Forest 

100 

640 

Forman  v.  Marsh 

610,  611 

122 

Forney's  Estate 

305,  520 

349,  353 

Forrest  v.  Elwes 

466,  905 

546 

V.  O'Bryan 

206 

160 

V.  Robinson 

660 

918 

Forrester  v.  Moore 

126 

383 

Forshaw  v.  Higginson 

476,  482,  786 

262 

Forster  v.  Blackstone 

438 

183,  187 

V.  Cockerell 

438 

244 

V.  Hale                   79 

81,  82,  83,  86 

766,  768 

V.  Hoggart 

602  c 

324 

V.  Ridley 

906 

633 

Forsythe  v.  Clark 

126,  133,  226 

c,  602  d,  60^  g 

Fort  V.  Fort 

639 

122,  828 

Fortescue  v.  Barnett 

98,  101,  247  o. 

98 

438 

766 

Forward  v.  Armstead 

97 

373,  541 

Fosbrook  v.  Balguy 

196,  428 

855 

Foscue  V.  Foscue 

863 

559,  601 

Fosdick  V.  Fosdick 

393 

112 

Foss,  In  re 

144 

,  414 

,  490,  505 

V.  Crisp 

65 

615 

V.  Foss 

665 

919 

V.  Sowles 

261 

127,  135 

Foster  v.  Athenaeum  Trustees          126, 

82,  134 

133,  237 

511  h 

V.  Bcrrier 

144 

324 

V.  Boston 

961 

383 

V.  Charles 

171 

499, 

687,  721. 

V.  Coe 

318 

724 

,  729,  731 

V.  Craige 

501 

INDEX    TO    CASES    CITED. 
[ReforeDces  are  to  sections.] 


Ixxiii 


FoBter  V.  Crenshaw 

562 

V.  Davies 

276.  441 

V.  Dawber 

270,  271 

V.  Deacon 

122 

V.  Deunison 

299 

V.  Durant 

142 

V.  P'oster 

144,  815  a 

V.  Glover 

299,  310,  647 

V.  Goree 

602  p 

V.  Gover 

602  del 

V.  Hodgson 

862 

I).  Kerr 

649 

V.  Latham 

585 

V.  Marriott 

538 

V.  McMahon 

928 

V.  Mix 

438 

V.  Pennsylvania  Ins.  Co.  645 

V.  Roberts  188 

V.  Saco  Manuf.  Co.  591 

V.  Willson  112 

Foster's  Will,  In  re  282,  453 

Fothergill  v.  Fothergill  107 

Fountain  Spring  Park  Co.  ti.  Roberts 

207 

Fountaine  v.  Pellett  526,  554,  912, 

913,  915 

Fourdrin  ?;.  Gowdy  64 

Fournier  v.  Ingraham  918 

P'ourth  St.  Nat.  Bank  v.  Yardley       87 

Fouvergue  v.  New  Orleans  182 

Foveaux,  In  re  705 

Fowey's  Charities  282 

Fowke  I'.  Slaughter  133,  135 

Fowlc  V.  Merrill  199 

Fowler,  In  re  275 

V.  Colt  462 

V.  Fowler  665 

V.  Garlike  112,  159,  711,  712 

t;.  Gowing  96,  103,  437  a,  465, 

815  6 

r.  Hunter  117,251 

V.  Ingersoll  391 

V.  Jones  308 

V.  Mut.  Life  Ins.  Co.  815  b 

V.  Reynall  453,  461,  466,  875 

V.  Rust  232,  237 

V.  True  828 

V.  Webster  137 

V.  Willoughby  571 

V.  Wyatt  922,  923 

Fox  V.  Adams  592 

r.  Citizens'  Bank  &  Trust  Co.  225 

V.  Cook  863 

V.  Dougherty  127 

V.  Fox  112,  113,  119,  144,  146, 

171,  181 

V.  Gibbs  712 

V.  Jones  679 

V.  Mackreth       180,  189,  195,  197, 

201,  206 

V.  Phelps  583 

V.  Storrs  312 

V.  Tay  863 

V.  Wright  188 

Foxworth  V.  White  197 

Fozier  v.  Andrews  900,  901 

Frail  v.  EUis  235,  239 

Fralick  r.  Lyford  729.  730,  74S 


Frampton  v.  Frampton  609  c,  672,  673 

France  v.  Sliter  232 

V.  Woods  443 

Francis,  In  re  427 

V.  Jirooking  636 

V.  Clemon  570 

V.  Francis  453.  461.  815  b,  904 

V.  Gower  558 

V.  Harrison  279,  873,  875 

V.  Roades  137 

V.  Wigzell  658,  662 

V.  Wilkinson  189 

Franciscus  v.  Reigart  299,  310 

Franco  v.  Bolton  214 

V.  Franco  419,  633,  884 

Frank  v.  P'rank  185 

Frank's  App.  429 

Franklin  v.  Armfield  694,  737,  748 

V.  Bank  of  England  242 

V.  Firth  468 

V.  Green      602  t,  602  dd,  615,  618. 

619,  915 

V.  Hayes  275 

V.  McElroy  452 

V.  Osgood  411,  499,  602  m 

Franklin's  Estate  43 

Appeal  699 

Franklin  Bank  v.  Cooper  179 

Franklin  Sq.  House  v.  Boston  699, 

705,  710 

Franklyn,  Ex  parte  456 

Franks  v.  Price  372 

Frary  v.  Booth  660 

Fraser  v.  Murdoch  485,  909 

Frauenfeldt's  Estate  640 

Frayser  v.  Rd.  Co.  438 

Frazer  v.  Bailie  633 

V.  Beville  641 

V.  Moore  862 

V.  Page  476  a 

V.  Palmer  432,  902 

Frazier  v.  Brownlow  660 

V.  Center  32,  661 

V.  Frazier  65,  160,  251,  255 

V.  Jeakins  195 

V.  Smart  918 

V.  Vaux  918 

Freake  v.  Cranefeldt  558,  559 

Frederic  v.  Haas  126,  132 

V.  Hatwell  667 

Frederick's  Appeal  104 

Freeland  v.  Pearson  254,  258 

Freeman  v.  Bristol  Sav.  Bank  800 

V.  Brown  260,  264 

V.  Butters  252,  254 

V.  Cook       184,  540,  541,  843,  844, 

927 
V.  Curtis  184 

V.  Fairloo     463,  821,  826,  827,  905 
V.  Flood  670,  671 

V.  Freeman  75,  77,  647 

V.  Harwood  195 

V.  Kelly  127,  133,  137,  138 

V.  Mebane  238 

V.  Moore  667 

V.  Parsley  632,  633 

V.  Tatham  85 

V.  Thompkina  916 


Ixxiv 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.) 


Freeman's  Estate  769,  784 

Freeman's  Bank  v.  Nat.  Tube  Co.   122 


Freemoult  v.  Dedire 

122 

Freeport  v.  Bartol 

83 

Freer  v.  Lake 

82 

Freke  v.  Lord  Carbery 

396 

Frelick  v.  Turner 

618 

Freme  v.  Woods 

443 

914 

French  v.  Barron 

904 

V.  Commercial  Bank 

919 

V.  Davidson                 507, 

508, 

511 

V.  French 

191 

299 

V.  Griswold  College  907 

V.  Harrison  835 

V.  Hobson  419,  454,  851 

V.  Northern  Tr.  Co.        276  a,  503, 

920 

V.  St.  George  533 

V.  Westgate  820  a 

Frere  v.  Winslow  574 

Freto  V.  Brown  613 

Frewen,  Re  846 

Frey  v.  Clifford  815  c 

V.  Frey  462,  900 

Freyer,  In  re  415,  416,  418,  890 

Freyvogle  v.  Hughes      304.  310  a,  311, 

652 
Frickett  V.  Durham  133 

Frier  v.  Peacock  730 

Frith,  In  re  815  b 

V.  Cartland         433,  463,  835,  837, 
863 
Fritz  V.  City  Trust  Co.      411,  770,  779 


Froelich,  Matter  of 
Frolich  v.  Seacord 
Frost,  In  re 

V.  Beekman 

V.  Belmont 

V.  Bush 

V.  Perfield 
Frothingham  v.  March 
Fry  V.  Capper 

V.  Fry 

V.  Lane 

V.  Mercantile  Tr.  Co 

V.  Morrison 

V.  Tapson 
Fry's  Estate 
Fryberger  v.  Berven 
Frye  v.  Porter 

V.  Shelbourne 
Fulbright  v.  Yoder 
Fullager  v.  Clark 
Fuller  V.  Abbe 

V.  Bennett 

V.  Dame 

V.  Johnson 

V.  Knight 

V.  O'Neil 

V.  Redman 

V.  Wilson 
Fuller's  Will 
Fulton  V.  Gilmore 

V.  Jansen 
Whitney 


432,  919 

129,  206,  208 

380 

220,  221 

214 

865 

171,  206 

602  r 

671 

487,  629,  771 

184,  186 

97,  104 

144 

404 

511  c 

234,  238 

367,  514,  517 

580 

312 

167 

919 

222 

214 

770 

770,  877,  884 

602  m,  779 

481 

172 

729 

922 

127,  166 

195,  196 


Fulton  Bank  v.  New  York  Coal  Co. 


Funk  V.  Lawson 


222 

82 


Furguson  v.  Smith  654 

Furiam  v.  Saunders  521 

Furman  v.  Coe  624,  914 

V.  Fisher  82,  259 

V.  Rapelje  848 

Furness  v.  Caterham  Ry.  752 

Furrin  v.  Newcombe  160 

Fursaker  v.  Robinson  109,  111 

Fussell  V.  Dowding  920 

Fust,  Ex  parte  457 

Futter  V.  Jackson  826,  827 

Fyler  v.  Fyler     246,  466,  847,  849,  907 

V.  Pole  862 


G ,  In  re  117,  118,  620 

Gabb  V.  Prendergast  66 

Gabee  v.  Sneed  232 

Gabriel  v.  Sturgia  901 

Gadsden,  Ex  parte  812 

V.  Whaley  86 

Gaffee,  In  re  653,  670,  671 

Gaffney's  Estate  96 

Gage,  In  re  377,  380,  381 

V.  Dauchy  679 

V.  Gage  142 

V.  Rogers  891 

Gaillard  v.  Pardon  361 

Gaines  v.  Chew  126,  142,  182,  183 

V.  Drakeford  137 

V.  Hennen  183 

V.  Poor  672 

Gainus  v.  Cannon  76,  127 

Galard  v.  Winans  849 

Galbraith  v.  Elder  538 

V.  Gedge  322 

Gale  V.  Coburn  299 

V.  Gale  169 

V.  Harby  127,  137 

V.  Mensing  602  aa 

Gale's  Petition  275 

Gallagher  v.  Ferris  454 

V.  Northrup  171,  181 

Gallagher's  Appeal  570 

Gallatian  v.  Cunningham  200 

V.  Erwin  21S 

Gallego  V.  Att.-Gen.  724,  748 

;;.  Gallego  627,  643 

Galley  v.  Panther  600 

Galliers  v.  Moss  337 

Gallion  v.  McCaslin  21& 

Galloway  v.  Finley  232 

V.  Hamilton  234 

Galvin  v.  Newton  602  w 

Galway  v.  Butler  888 

Gam'oell  v.  Trippe  253,  920 

Gamber  v.  Gamber  677 

Gamble  v.  Queen's  County  W.  Co.  242 

Gambril  v.  Gambril  552,  554 

V.  Roberts  553 

Game,  In  re  449,  547 

Gandy  v.  Gandy  886 

Gann  v.  Chester  238,  239 

Gannon  v.  McGuire  96 

V.  Ruffin  843^ 

V.  White  102 


INDEX   TO    CASES    CITED. 
[References  are  to  aectiona.] 


Ixxv 


Gantert,  Re 
Gapen  v.  Gapen 
Gardenhire  v.  Hinds 
Gardiner  v.  Tyler 
Gardner,  In  re 
Gardner  v.  Adams 

V.  Astor 

V.  Barker 

V.  Brown 

V.  Downes 

V.  Fell 

V.  Gardner 


448 
S63 
312,  64S 
918 
112 
69 
347 
118 
262 
276,  476  a,  922,  928 
871 
347.  560,  598,  647, 
660,  666,  678,  680, 
795,  797 
66 
324 
636 
82,  97 
203 
58,  77,  82,  86 
75 
360 
629 
277 
252,  540 
785 
137 
769 
903  a 
144 
121 
635,  640 
454 
438 
610 
252,  540 
259 
95,  109,  240,  359, 


V.  Heyer 

V.  Hooper 

V.  Marshall 

V.  Merritt 

V.  Ogden 

V.  Rowe 

V.  RundoU 

V.  Stevens 

V.  Walker 

V.  Weeks 

V.  Whitford 
Gardner's  Appeal 
Gardner  Bank  v.  Wheaton 
Garesche  i'.  Levering  Inv.  Co. 
Garey  v.  Whittingham 
Garfield  v.  Hatmaker 
Garfoot  v.  Garfoot 
Garforth  v.  Bradley 
Garland,  Ex  parte 

V.  Harrington 

V.  Loring 

V.  Smith 
Garner  v.  Dowling 

V.  Garner        38 

370 

V.  Ger.  L.  Ins.  Co.  104 

V.  Moore  438,  474 

V.  Stroude  891 

Garnett  v.  Armstrong  347 

V.  Macon  225,  562,  598,  794, 

795,  800,  801 
Garniss  v.  Gardner 
Garnistone  v.  Gaunt 
Garnous  v.  Knight 
Garnsey  v.  Gardner 

V.  Gothard 


V.  Mundy 
Garr  v.  Drake 
Garrard  v.  Fankell 

V.  Lauderdale 

V.  Railroad  Co. 

V.  Tuck 
Garrett  v.  Carr 

V.  Garrett 

V.  Noblo 

V.  Pretty 

V.  Rutherford 

V.  Wilkinson 
Garrick  v.  Taylor 
Garrow  v.  Davis 
Garson  v.  Green 
Garten  v.  Trobridgc 
Garth  v.  Baldwin 


462,  463,  468,  471 

581,  605 

103 

247  a 

82 

104 

603 

186 

98,  100,  108,  585, 

593,  596,  597 

22.5,  810 

354,  866 

468 

126,  127,  137,  836 

771 

512,  513 

75 

144 

130,  139 

69 

232,  236,  237,  2.39 

133 

305,  315,  357,  358 


Garth  v.  Cotton 

871 

V.  Davis 

75 

V.  Townsend 

264 

Gartland  v.  Mayatt 

294 

Gartside  v.  Gartside           275 

276,  282 

V.  Isherwood 

178,  189 

V.  Radcliffe 

183,  187 

Garver  v.  Couser 

358 

Garvey  v.  Clifford 

82,  96 

V.  McDavitt 

386  a 

Garvin  v.  Williams 

200 

Garwood  v.  Eldridge 

226 

Gary  v.  Colgin 

782 

V.  May 

601 

V.  Whittingham 

889 

Gascoigne  v.  Thwing 

137 

Gashe  v.  Young 

127,  206 

Gaskell  v.  C'hambers 

206,  207 

V.  Gaskell 

165,  262 

Gasque  v.  Small 

187 

Gasquoine,  In  re 

415 

Gass  V.  Gass 

126 

V.  Mason 

194 

V.  Porter 

783 

V.  Ross 

748 

V.  Wilhite           384,  705, 

715,  724, 

728 

730,  748 

Gassett  v.  Grout 

627,  632 

V.  Strong 

72 

Gaston  v.  Frankum 

657 

V.  Hayden 

275.  276 

Gaston's  Trust 

821 

Gate  V.  Debrett 

602  e 

Gatens  v.  Madderly 

648 

Gates  V.  Jones 

710 

V.  Kelley 

172 

V.  Paul 

82 

V.  Seibert 

381 

Gault  V.  Saffin 

677 

Gaunt  V.  Taylor 

886,  888 

Gause  v.  Hale 

361 

Gaussen  v.  Whatman 

487,  553 

Gavcs  V.  Hickson 

441 

Gay  V.  Ballou 

613 

V.  Edwards 

863 

Gay's  Estate 

706 

Gaydeu  i'.  Gayden 

426 

Giylord  v.  Gay  lord 

75 

V.  Lafayette 

104,  359 

Gaylords  v.  Kelshaw 

896 

Gaynor  v.  Quinn 

132,  133 

Gazzam  v.  Poyntz 

590,  592 

Geary  v.  Bearcroft 

325 

Geddes  v.  Pennington 

174 

Geddings  v.  Geddings 

129 

Gee  V.  Gee 

133,  568 

V.  Liddell 

96 

V.  Thrailkill 

75,  79 

Geer  v.  Traders'  Bank 

590 

Gelkey  v.  Paine 

545 

Gemmel  v.  Fletcher 

181 

General  Proprietors  v.  Force 

429,  468 

Genet  v.  Beekman 

386  a 

V.  Hunt 

383 

V.  Talmadge 

608,  611 

Gent  V.  Harris 

636 

Gentry  v.  Law 

172 

V.  McReynolda 

664 

Ixxvi 


INDEX    TO    CASES    CITED. 
[References  are  to  sections. 1 


George,  In  re 

616 

Giddings  v.  Palmer 

82 

V.  Bank  of  England 

86 

Gidley  v.  Lovenburg 

698 

V.  Braddock 

705 

Gidney  v.  Moore 

171 

V.  Goldsby 

639 

Giffen  v.  Taylor 

162,  181 

V.  Howard 

151 

Gifford  V.  Bennett 

828 

V.  Lansley 

611  c 

V.  Hort 

866 

Georges  v.  Pye 

836 

V.  Manley 

260 

Georgia,  etc.  Ass'n  v.  Faisson 

223 

V.  Thompson 

544 

Gerard  v.  Buckley 

520 

Gift  V.  Anderson 

602  dd 

Gerard  Ins.  Co.  v.  Chambers 

305 

Gilbert  v.  Bennett 

117 

Gerber  v.  Bauerline 

613 

V.  Chapin 

113,  251 

German  v.  Gabbald 

75 

V.  Colt 

72 

German  Am.  Sem.  v.  Keifer 

865 

V.  Cooley 

602  66 

German,  &c.  Assoc. 

730 

V.  GUbert 

142,  184 

German  Bank  v.  Haller 

598 

V.  Hewetson 

202  b,  206 

German,  &c.  Congr.  v.  Repler 

732 

V.  Kolb 

462,  458,  460 

Geroe  v.  Winter 

501 

V.  Lawrence 

133,  137 

Gerrard  v.  Gerrard 

578 

V.  Lewis 

648,  649 

Gerrish  v.  New  Bedford  Inst. 

for 

V.  Overton 

101,  102,  105 

Savings                                   82,  86.  99 

V.  Penfield 

768 

Gerry,  Matter  of 

547 

V.  Sleeper 

828,  863 

V.  Stimson                       78, 

133,  162 

V.  Stockman 

212 

Gest  V.  Flock 

499 

V.  Sutliff 

918 

Getchell  v.  Rust 

570 

Gilbert's  App. 

927 

Getman  v.  Beardsley  891 

V.  Getman  133 

Gevers  v.  Wright  110,  367 

Geyser  &c.  Mining  Co.  v.  Stark         225 

Geyer  v.  Branch  Bank  649,  651 

Gheen  v.  Osborn  556 

Ghiselin  v.  Ferguson  232,  238,  239 

Ghormley  v.  Smith  671 

Ghost  V.  Waller  402,  444,  463,  806 

Gianella  v.  Momsen  828 

Gibboney  v.  Kent  855 

Gibbons  v.  BaddaU  236,  239 

V.  Caunt  185 

V.  Mahon  544,  545 

V.  Maltyard  693,  700,  701 

V.  Taylor  445,  847 

Gibney  v.  Allen  493,  500,  800 

Gibbs  V.  Cunningham     602  s,  780,  782 

V.  Guignard  262 

V.  Harding  672 

V.  Herring  421 

V.  Johnson  347 

V.  Marsh  38,  248,  253,  284, 

499    602  ni 

V.  Rumsey  158,  159,  160,  507,  711 

V.  Smith  276 

Gibson  v.  Armstrong  151 

V.  Barbour  195 

V.  Bott  661,  656,  915 

V.  Burgess  72 

V.  Crehore  918 

V.  Foote  79,  147 

V.  Gossom  202 

V.  Jeyes  187,  195,  202 

V.  Jones  602  /,  602  x,  602  an, 

602  ee,  782 

V.  McCall  720,  748 

V.  McCormick  562 

V.  Montford         308,  312,  315,  317 

V.  Russell  189,  204,  210 

V.  Scudmore  605 

V.  Winter  328 

Gibson's  Case  240,  277,  780,  918 

Giddings  v.  Giddings  196,  63S 


Gilbert  Bros.  v.  Lawrence  Bros.     815  c 

Gilbertson  v.  Gilbertson  908 

Gilchrist  v.  Brown  133 

V.  Cator  634 

V.  Stevenson        100,  104,  879,  921 

Giles  V.  Anslow  112 

Gilkey  v.  Paine  845 

Gill  V.  Att.-Gen.  417,  422,  729 

V.  Carmine  437  a 

V.  Logan  312 

V.  Lyon  602  ce 

Gillam  v.  Taylor  699 

Gillbrand  v.  Alexander  924 

V.  Goold  582,  772 

Gillespie  v.  Burleson  648,  649 

V.  Moore  186 

V.  Smith  248,  691,  774,  779 

V.  Somerville  324 

Gillett  V.  Hickling  602 

V.  Peppercorne  206 

V.  Stanley  33 

V.  Wray  614 

Gillick  V.  Jackson  437  o 

Gilliland  v.  Gilliland  144 

Gilman  v.  Hamilton  694,  724,  728, 

733,  748 

Gilman   C.   &    S.    R.    R.    Co.    v. 

Kellv  207 

Gilman  v.  Brown       232,  234,  235,  236, 

237 

V.  Healey  129 

V.  McArdle  86 

Gilmore  v.  Ham  855,  864 

V.  Lee  715 

V.  Johnson  172 

I'.  Tuttle  918 

Gilpatrick  v.  Glidden         169,  171,  181 

Gilruth  V.  Decell  846 

Gindrat  v.  Montgomery  Gas  Light 

Co.  611  c 

Girard  Ins.  Co.  v.  Chambers  655 

Girard  Life  Ins.  Co.  v.  Chambers  386  a 
Girard  Will  Case  697 

Girard.  &c.  r.  Philadelphia        742,  748 


INDEX   TO   CASES   CITED. 
( References  are  to  sectiona.] 


Ixxvii 


Gisborn  v.  Charter  Oak  L.  Ins.  Co.  82, 
863.  915 

Gist  V.  Frazier  187,  192 

GittinR  V.  Steel  571 

Gitzhoffen  v.  Sisters  710 

Givena  v.  Clem          510,  511.  764,  770, 

787 

t>.  McCray  602  o 

Gladding  v.  Yapp  150 

Gladdon  v.  Stoneman  816,  818 

Gladsden  v.  Desportes  358 

Gladstone  v.  Hadwen  58 

Glaister  v.  Hewer       144,  626,  628.  639 

Glanys.  Ex  parte  58 

Glaser  v.  Priest  277 

Glass  V.  Gilbert  863 

V.  Hulbert  167 

V.  Oxenham  877 

V.  Ramsey  894 

V.  Warwick  662 

Glasscock  v.  Glasscock  238 

V.  Minor  175 

Glavin  d.  R.  I.  Hospital  747 

Glaze  V.  Drayton  231 

Glcaves  v.  Paine  633 

Glegg  V.  Edmondson  869 

Glen  V.  Fisher  575.  576,  627 

V.  McKim  415.  419.  420 

Glengall  v.  Barnard  547 

Glenn  v.  Hill  869 

V.  Randall  126 

Glenorchv  v.  Bosville  357,  359,  369 

Gliddon  v.  Taylor  678 

Glidewell  v.  Shaugh  126 

Glissen  v.  Ogdon  201 

Globe  Sav.  Bank  v.  Nat.  Bank  of 

Commerce  122 

Gloucester  v.  Wood  112,  157 

Glover  v.  Alcott  678 

V.  Condell  378 

V.  Hare  648 

V.  Monckton  315 

V.  Stamps  890  a 

Glover.  Appellant  849 

Glyn  I).  Locke  597,  794 

Goad  V.  Montgomery  600,  764,  783 

Gochcnauer  ».  Froelick  511 

Godard  v.  Conrad  96 

Goddard  v.  Hapgood  592 

V.  Pomeroy  748 

V.  Snow  213 

Godden  v.  Crowhurst  386  b,  555 

Godfrey  v.  Dixon  64 

I'.  Faulkner  452 

V.  Hutchins  503.  7v)0 

V.  Roberts  920 

V.  Walker  733 

Coding,  Ex  parte  780 

Godolphin  v.  Godolphin  48.  248,  489 

Godsall  V.  Webb  102.  105 

Godwin  v.  Younge  262 

Goehring's  App.  768 

Goelz  V.  Goelz  144 

Goepp's  App.  128 

Goff  V.  Pensenhafer  511  c 

Going  V.  Emery         4ft<),  694,  701,  720. 

724,  748,  766 

Gold  V.  Death  222 


Colder  v.  Bressler  284.  287.  499 

Goldiug  V.  Yapp  94 

Goidsmid  v.  Goldsmid  519 

V.  Stonehewer  873 

Goldsmith  v.  Goldsmith  171.  181 

V.  Osborne  602  o,  602  cc 

V.  Swift  545 

Goldstein  v.  Goldstein  828 

Goldthwaite  j;.  Nat.  Bank        438.  831, 

926 

Goleborn  v.  Alcock  218 

Gollner  v.  Greig  126 

Golson  V.  Dunlap  195 

Gomez  v.  Gomez  484.  529.  764 

V.  Tradesman's  Bank  82.  126, 

133,  322 

Gomley  v.  Wood  432.  904 

Gonzales  v.  Batts  593 

Gooch  V.  Vaughan  770 

Goochenaur's  Estate  628.  639 

Good.  In  re  705.  710 

V.  Cheesman  593 

V.  Fichthorn  112 

V.  Harris  648,  651 

V.  McPherson  744 

Goodale  v.  Mooney  712 

Goode  V.  Comfort  769 

Goodell  V.  Freed  226 

Goodenough,  In  re  450,  548.  551 

V.  Goodenough  871 

V.  Tremanondo  451 

Goodere  v.  Lloyd  157 

Goodhill  V.  Brigham  511  6 

Goodhue  v.  Barnwell  245,  863 

V.  Clark  476  a,  928 

Goodier  v.  Edmunds  448,  506 

V.  Johnson  506 

Goodinge  v.  Goodinge  256 

Goodman  i\  Goodright  379 

V.  Sayers  186 

V.  Winter  610 

Goodrich  v.  Downes  591,  592 

v.  Milwaukee  304 

V.  Pendleton  863 

r.  Proctor  593,  595.  602  g 

Goodright  v.  Hodges         126.  137,  139. 

143 

V.  Sw^^nmer  354 

V.  Wells  13,  300,  302,  347 

Goods  of  Ladv  Truro  93 

Goodson  V.  Ellison    269.  349.  351,  354, 

476  a,  883,  900,  901,  921,  922, 

928 

Goodtitle  v.  Cummings  218 

V.  Funucan  530 

V.  Jones         17,  328,  349,  360,  356, 

520 
V.  Knott  308 

V.  Woods  379 

Goodwin  v.  Gosnell  846 

V.  McGaughey  644.  545 

V.  McMinn  171,  181 

i>.  Massachusetts     Loan      & 

Trust  Co.  816  c 

V.  Mix  786 

r.  Moore  633 

r.  Proctor  790 

V.  Rice  122 


Ixxviii 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Goodyear  i\  Rumbeaugh^  676,  677 

Gordon  r.  Adolphua  516 

r.  Frail  910 

V.  Gordon  107,  178,  185 

V.  Green  86 

V.  Johnson  234,  238 

V.  McDougall  559,  601 

V.  Preston  754 

V.  West  918 

Gore  V.  Bowser  260 

V.  Clarke  159,  181 

V.  Gibson  191 

V.  Gore  379 

Gorge  V.  Chansey  482 

Gorge's  Case  144,  146 

Gorham  v.  Daniels  299 

Goring  v.  Bickerstaff  379 

V.  Nash                 107,  108,  111,  367 

Gorman  v.  Mnllins  610 

Gorrell  v.  Alspaugh  112 

Gorsuch  V.  Briscoe  284 

Gort  V.  Att.-Gen.  704 

Gorton,  In  re  815  b 

Gosling  V.  Carter      501,  795,  801,  802, 

803,  805,  808 

V.  Gosling  389 

Goss  V.  Cahill  678 

V.  Singleton    259,  273,  284,  602  m, 

858 

V.  Tracy  182 

Gossmour  v.  Pigge  184 

Gosson  V.  Ladd  312,  520 

Gott  V.  Cook  391,  508,  620 

V.  Gulp  615,  618 

Gottschalk  v.  Mercantile  Tr.  Co.     770 

Gottstein  v.  West  76 

Gough  V.  Andrews  579 

V.  Boult  256,  863 

V.  Butte  119 

V.  Crane  110 

V.  Offley  822 

Gould  V.  Choppell  441,  770 

V.  Emerson  843 

V.  Gould  182,  228 

V.  Harris  918 

V.  Hayes  918 

V.  Hill  648 

V.  Lamb  312,  320,  598 

V.  Mather  499 

V.  Okeden  192 

Goulden  v.  Buckelew  602  ff 

Goulder  v.  Camm  648 

Gouldev's  Estate  452,  460 

Gouldsvvorth  v.  Knight  412,  413 

Gouverneur  v.  Elmendorf  226 

V.  Titus  891 

Gove  V.  Brazier  562 

V.  Knight  664 

V.  Learoyd  162 

Governesses'    Institute  v.    Rus- 

bridger  824,  903  a 

Governor  v.  Gridley  43 

Governor,  «fec.  v.  Campbell  593 

Covin  V.  De  Miranda  96,  703 

Gower  v.  Eyre  447,  552 

V.  Grosvenor  359,  364,  373 

V.  Maiuwaring       19,  20,  255,  507, 

510 


Gower  v.  Mead 

564 

V.  Sternes 

226 

Gowing  V.  Rich 

149 

Gowland  v.  De  Faria 

188.  867 

Grabowski's  Settlement 

556  o 

Grace,  Ex  parte 

196 

V.  Perry 

252,  511c 

V.  Phillips 

508 

V.  Webb 

555 

Gracey  v.  Davis 

594 

Graff  V.  Bonnett 

386  a 

V.  Castleman 

225 

V.  De  Turk 

254 

V.  Rohrer  143,  144,  162 

Grafflin  v.  Robb  225,  800 

Graham  v.  Austin  419 

V.  Birkenhead  Railway  870 

V.  Davidson  418,  419,  863 

V.  Donaldson  141 

V.  Dyster  243 

V.  Fitch  654 

V.  Fitts  779,  785 

V.  Graham  122,  367 

V.  King  602  /,  602  66,  602  ff 

V.  Lambert  82,  98 

V.  Lee  388 

V.  Little  92,  194,  785 

V.  Londonderry  532 

V.  Long  49 

V.  Maxwell  72 

V.  Pancoast  194 

V.  Stewart  359 

V.  Torrance  863 

V.  Whitridge       299,  305,  309,  377, 

380,  383,  392,  476  a 

Graham's  Estate        415,  417,  420,  547 

Graham  Paper  Co.  v.  Pembroke     438, 

926 
Gram  v.  Prussia  737 

Cranberry  v.  Cranberry  272,  918 

Grandom'a  Estate  699 

Grand     Island     Banking     Co.     v. 

Wright  661 

Grand   Prairie  Seminary  v.   Mor- 
gan 728 
Grand  Rapids  Nat.  Bank  v.  Ford  815  c 
Grange  v.  Tiving  52 
Granger,  Ex  parte                                 228 
V.  Bassett                              645,  556 
V.  Granger                                       358 
Grangier  v.  Arden                                  98 
Grant,  In  re                                             37 
V.  Bradstreet                                 181 
V.  Campbell                                   906 
V.  Dyer                                           618 
V.  Grant                                  72,  647 
V.  Hook                         598,  795,  798 
V.  Lunam                              256,  507 
V.  Maclaren                                   275 
V.  Mills                 217.  236,  239,  828 
V.  Quick  72 
V.  Saunders                  721,  731.  748 
V.  Squire                                          358 
Grantham  v.  Grantham                      144 
V.  Hawlev                                        67 
Granville  v.  NcNeale         294.  499,  502 
Grapengether  v.  Fejervary        232,  239 
Gratwick's  Trust,  In  re             254,  668 


INDEX  TO   CASES   CITED. 
(References  are  to  eections.] 


Ixxix 


Grata  v.  Cohen  190 

Gravouor  v.  Hallam  706 

Graver's  Appeal  891,  894 

Graves  v.  Allen  65 

r.  Dolphin  386 

V.  Dugan  133 

V.  Graves  116,  137,  162 

V.  McCaU  232,  239 

V.  Safford  96 

V.  Spier  211 

V.  Strahan  266,  453 

V.  Ward  135 

V.  Waterman  195 

V.  White  171 

Graves's  Appeal  463,  468,  471 

Gray,  Ex  parte  332 

V.  Bell  52 

V.  Bridgeforth  380 

V.  Chaplin  885 

V.  Corbit  126,  321 

V.  Crockett  678 

V.  Dougherty  892 

V.  Farmers'  Exchange  Bank      217 

V.  Fox  453,  459 

r.  Gray  96,  112,  255,  564 

V.  Haig  440,  821 

V.  Henderson  499,  501 

V.  Hill  593 

71.  Howard  602  p,  602  q,  602  r, 

602  2/ 

V.  Johnston  122,  828 

V.  Lynch  343,  459,  914 

V.  Mansfield  204,  206 

V.  Mathias  214 

V.  Obear  386  a 

V.  Portland  Bank  545 

V.  Shaw  774 

V.  Thompson  468 

V.  Ulrich  831 

V.  Viers  780 

V.  Whittemore  377,  381,  392,  448, 

510 

V.  Woods  180 

V.  Zellmer  223 

Gray's  Estate  628,  639 

Grayl^urn  v.  Clarkson  439 

Graydou  v.  Graydon  518 

V.  Hicks  513,  518 

Grayson  v.  Bowlin  865 

Greason  v.  Keteltas  528,  530 

Great  Eastern  Ry.  Co.  v.  Turner       65 

Great  Falls  v.  Worster  72 

Great    Luxembourg    R.     Co.    v. 

Maguay  207,  430 

Great  Northern  Ry.  Co.,  Ex  parte   455 

Greatly  v.  Noble  658,  835 

Greaves,  Ex  parte  267 

V.  Simpson  358 

Greaves'  Settled  Estates,  In  re         616 

Greedy  v.  Lavender        629,  633,  903  a 

Greely  v.  Nashua  476  a 

Green,  Ex  parte  332,  616,  618 

In  re  581 

V.  Allen  713,  721,  731,  748 

V.  Beatty  330 

V.  Belcher  581 

V.  Bissell  545,  766 

V.  Blackwell        550,  698,  700,  731 


Green  v.  Borland 

286 

V.  Carlil 

667 

V.  Gates 

76 

V.  Claiborne 

768 

V.  Cook 

134 

V.  Crapo 

459,  548 

V.  Crockett 

238 

V.  Demoss 

238,  239 

V.  Dennis 

42,  748 

V.  Dietrich 

133,  137 

V.  Drummond 

134 

V.  Ekins 

362,  616,  622 

V.  P'olgham 

67 

V.  Green  133,  322,  487,  553, 

672,  784,  837 
V.  Howard  266,  257,  699 

V.  Lowe  560 

V.  Marsden  112,  113 

V.  McBeth  611 

V.  Morris  186 

V.  Morse  600 

V.  Mumford  331 

V.  Otte  636 

V.  P'got  480 

V.  Pledger  827 

V.  Putney  918 

V.  Rutherforth  42,  743 

V.  Scranage  680 

V.  Smith  38,  238 

V.  Spicer  386,  555 

V.  Stephens  372 

V.  Thompson  187,  189 

V.  Trieber  592 

V.  Winter     206,  428,  526,  910,  916 
Green's  Estate  918 

Green's  Adm'r  v.  Fidelity  Tr.  Co.  705, 
706,  710,  741 
Greene  v.  Greene      322,  347,  547,  648, 

552 

V.  Huntington  556 

V.  Smith  476  a,  545 

V.  Sprague  Manf  g  Co.  591 

Greenfield  v.  Vason  815  a 

Greenfield's  Estate        77,  98,  194,  202, 

210 

Greenhill  v.  Willis  438 

Greenhouse,  Ex  parte  276,  733 

Greening  v.  Fox  918 

Greenland  v.  Waddcll  264,  500 

Greenlaw  v.  Kent  129 

Greenleaf  v.  Land  &  Lumber  Co.     863 

V.  Queen  602  i.  602  m,  602  p, 

602  dd,  780,  782 

Greenough  v.  Welles  248,  500 

Greenslade  v.  Dare  35 

Grecnwell  v.  Greenwell      613,  616,  619 

Greenwood  v.  Coleman  312,  320 

V.  Roberts  385 

V.  Wakeford        268,  276,  280,  282, 

460,  509,  848,  884,  901,  924 

Greer  v.  Baughman  137 

V.  McBcth  783 

V.  Stoller  21 

Greetham  v.  Colton  789,  802,  803 

Greeville  v.  Browne  570 

Gregg  V.  Coates  121,  477,  540,  552 

V.  Currier  414 

V.  Gabbert  275 


Ixxx 


INDEX   TO    CASES    CITED. 

[References  are  to  sections.] 


Gregory  v.  Bowlsby     75,  162,  171,  181 

r.  Gregory  228,  229,  416,  418, 

421 

V.  Henderson  298,  306, 

307 

V.  Lockyer  663 

V.  Marks  _  639 

V.  Merchants'  National  Bank      82 

Greisley  v.  Chesterfield  550 

Grenfell  v.  Dean  69 

V.  Girdlestone  866 

Grenville  Academies,  Ex  parte    42,  282 

Gresham  v.  Ware  347 

Gresley  v.  Mousley  202,  869 

Greswold  v.  Marsham  347 

Grey,  Re  671 

V.  Grey         54,  126,  143,  145,  146, 

147,  151,  161 

Grey's  Settlements,  In  re  670 

Gridley  v.  Andrews  569,  570 

Grier  v.  Grier  361 

Grier's  Appeal  607 

Grierson  v.  Eyre  871 

Grieves  v.  Case  701 

Grievson  v.  Kirsopp  248,  249,  250, 

258 

Griffin,  Ex  parte  404,  411,  417,  441 

Griffin,  Re  87 

V.  Barney  591,  918 

V.  Blanchard  237 

V.  Camack  232,  238 

V.  De  Veuelle  189,  193 

2).  Doe  602/ 

v.  Fleming  554 

V.  Graham    384,  700,  724,  731,  748 

V.  Griffin  196,  538 

r.  Macauley  416,  420,  526 

V.  Marine  Co.  602  p,  602  v,  782 

V.  Nanson  181 

V.  Schlenk  171,  172,  206 

V.  Smith  237 

'0.  Taylor  171 

Griffith  V.  Buckle  361 

V.  Chew  244 

V.  Eisenberg  82,  140 

V.  Evans  112,  251 

V.  Griffith  51,  218,  222,  223, 

240,  277,  648 

V.  Hughes  848 

V.  Morrison  550 

V.  Owen  195,  431 

V.  Pownall  385 

V.  Robins  189,  190,  210 

V.  Spratley  183,  187,  188,  192 

Griffith's  Estate  468 

Griffith  Flood's  Case  739 

Griffiths  V.  Cape  748 

V.  Porter  402,  418,  849,  931 

V.  Pruen  272 

V.  Ricketts  593 

V.  Vanheythuysen  884 

V.  Vere  395 

Grigby  V.  Cox  654,  667 

V.  Hair  238 

Griggs  V.  Staples  213 

V.  Veghte  476  a 

Grimball  v.  Cruse  476  a,  918 

Grime  v.  Borden  672 


Grimes  v.  Harmon    694,  713,  728,  729, 

730 
Grimes  Dry  Goods  Co.  v.  Mal- 
colm 686 
Grimke  v.  Grimke  248 
Grimshaw  v.  Walker  592 
Grimstone,  Ex  parte                    605,  611 
Grinell  v.  Adams  590 
Grisby  v.  Mousley  229 
Grissom  v.  Hill                             737,  748 
Griswold  v.  Bigelow                          511  c 
V.  Caldwell                                    768 
V.  Chandler                           463,  468 
V.  Griswold                           828,  837 
V.  Penniman  639 
V.  Perry                                   784,  785 
V.  Sackett                               286,  287 
Gritten  v.  Dickerson  322 
Grolick  v.  Ward  214 
Groom  v.  Booth                           793,  884 
Grooves  v.  Rush  76 
Groschen  v.  Page                                  692 
Gross  V.  Reddig                                    678 
V.  Watts                                         223 
Grosvenor  v.  Day                            602  66 
V.  Sherratt                                       194 
Grote  V.  Grote  95 
Grotenkemper  v.  Bryson           790,  795 
Groton  v.  Ruggles                                 262 
Grouch  V.  Hazlehurt  L.  Co.               181 
Grout  V.  Van  Schoonhover                 365 
Grove  v.  Kase                                 171,  181 
Grover  v.  Hale                         602  m,  779 
V.  Wakeman                                    59l» 
Groverman  v.  Diffenderffer       627,  645 
Groves  v.  Clark                                      145 
V.  Groves     126,  131,  137,  140,  141 
V.  Perkins                                185,  645 
V.  Price                                           438 
V.  Wright                                       547 
Grosvesnor  v.  Cartright                     464 
Growing  v.  Behn                                    239 
Gruhn  v.  Richardson                            238 
Grumbles  v.  Grumbles                        864 
Grundy  v.  Drye                                     287 
Grute  V.  Locroft                                   637 
Guarantee  &  Tr.  Co.  v.  Jones       511  c, 
790,  794 
Gubbins  v.  Creed                                 427 
Gude  V.  Worthington                            249 
Guernsey  v.  Lazear                           386  a 
Guerrant  v.  Fowler  71 
Guerreiro  v.  Peile                                 243 
Guest  V.  Farley                                    299 
Guibert's  Trust                                      297 
Guiddv's  Case                                      694 
Guild  V.  Allen                46,  311,  722,  729 
V.  Guild                           71,  627,  631 
Guilfoil  V.  Arthur                260,  705,  710 
Guill  V.  Northern                                 794 
Guilford  v.  Minneapolis,  &c.  Ry.  Co.  223 
Guillam  v.  Holland                                584 
Guillou  V.  Peterson                               846 
Guion  V.  Doherty                                  680 
V.  Melvin                                          282 
V.  Pickott                      248,  290,  473 
Gulf  Red  Cedar  Lumber  Co.  v. 

O'Neal  511c 


INDEX    TO    CASES    CITED. 


Ixxxi 


[References  are  to  aections.] 


Gulick  V.  Griswold 

V.  Gulick 
Gullin  V.  GuUin 
Gullwer  v.  Ray 

V.  Wicket 
Gully  r.  Cregoe 

V.  Hall 
Gumbert's  App. 
Gunn  V.  Barrow 
Gunnell  v.  Cockerill 

V.  Whitear 
Gunnison  v.  Erie  Dime  S. 
Gunter  v.  Gunter 

V.  Jones 

V.  Thomas 
Guphill  V.  Isbell 
Gurney,  In  re 
Gutch  V.  Fosdick 
Guth  V.  Guth 
Guthrie  v.  Gardner    126, 
Gutzwiller  v.  Lackman 
Guy  V.  Dormer 

V.  Hancock 

V.  Mcllree 
Guyer  v.  Maynard 
Guyton  v.  Shane 
GwUliams  v.  Rowell 
Gwinn  v.  Williams 
Gwynn  v.  Gwynn 

V.  Heaton 

V.  McCauley 
Gyett  V.  Williama 


254,  493,  784 

104 

G30 

324 

379 

112,  117 

646 

159 

330 

828 

433 

Co.  126 

348 

602  p,  602  V 

184 

330 

864 

864 

672,  673 

143,  144,  149 

596 

511  c 

602  ee 

589 

308.  765 

411,  900 

121,  414 

200 

160 

187,  188 

82 

570 


H. 

Haaven  v.  Hoaas  142 

Habbuck,  In  re  548 

Haberdashers'  Co.  v.  Att.-Gen.  900 
Habergham  v.  Vincent  13,  93,  151.  347 
Haber.shon  v.  Vardon  701,  710 

Hacker  v.  Gentry  75 

Hackett  v.  Hackett  511  6 

Hacklcy  v.  Littell         104,  386  a,  827  a 


Hackman  v.  MaGuire 
Hackney  v.  Brooman 

V.  Butts 
Haddelsey  v.  Adams 
Hadden  v.  Chorn 
Haddock  v.  Perham 
Hadley.  In  re 

V.  Forsee 

V.  Hadley 

V.  Hopkins  Academy 


V.  Latimer 
V.  Pickett 
V.  Stuart 
Hadow  V.  Hadow 


437  a 

86.  99 

206 

371 

748 

539 

272.  291 

708,  729 

499 

700,  743. 

744, 748 

189 

237 

128 

112,  117,  118,  612. 

620 


Haendler  v.  Stewart  499 

HafTey  v.  Birchetts  238 

Hafner  v.  Hafner  398 

V.  Irwin  590,  592 

Hagan  v.  Piatt  547 

V.  Varnev  554 

Hagell  r.  Currie  827 
Hagcman's  Ex'rs  v.  Roome  711,  712 
VOL.  I.  — / 


Haggart  v.  Ranney 
Hagler  v.  McCombs 
Hahn  v.  Piudeil 
Haigh  V.  Kay 

V.  Pearson 
Haight,  Matter  of 
Haigood  v.  Wells 
Hain  v.  Robinson 
Haines  v.  Ellis 

V.  Haines 

V.  Hay 

V.  O'Connor 
Hair  v.  Caldwell 
Hake  v.  Fink 
Halcott  V.  Morkant 
Haldenby  x.  SpofFord 
Hale  V.  Aaron 

V.  Burrowdale 

V.  Hale 

V.  Harris 

V.  Hollon 

V.  Home 

V.  Lamb 

V.  Layton 

V.  Penn 

V.  Stone 
Haley  v.  Bannister 

V.  Bennett 
Haleyburton  v.  Kershaw 
Halford  v.  Stains 
Hall,  In  re 


499.  502,  505 

91« 

782 

86,  162,  165.  226 

196 

919 

618 

75 

645 

82 

900,  902 

141 

252 

639 

137 

768,  877 

205 

451 

610 

328,  878 

188 

152 

107,  110,  111 

75 

390 

647 

613.  619 

232 

562 

150,  397.  584 

452,  459,  460,  467,  846, 

849 

V.  Bliss  199,  602  v,  602  w 

V.  Bullock's  Trustee  477 


V.  Bumstead 
V.  Carter 


V.  Congdon 

V.  Coventry 

V.  Culver 

V.  Crushing 

V.  Denison 

V.  Dewes 

V.  Doran 

V.  Franck 

V.  Hall 

V.  Hallett 

V.  Harris  ^ 

V.  Hill 

V.  Hugonin 

V.  Irwin 

V.  Jameson 

V.  Jones 

V.  Laver 

V.  Livingston 

V.  Lock 

V.  Maccubbin 

V.  May 

V.  McLain 

V.  Otis 

V.  Palmer 

V.  Read 

V.  Sayre 

V.  Sprigg 

V.  Sullivan  R.  R.  Co 

V.  Timmons 
V.  Towne 


559 
416,  421,  578.  580, 
581,  584 
126 
872 
490 
262,  263,  272,  574 
591,  602 
344,  414,  492 
141.  148 
412 
84,  104.  147,  324,  636 
894 
602  dd,  843.  877 
632 
633 
500 
437  a,  815  6 
232.  414 
894.  907 
226 
884 
238 
294.  340,  495,  505 
639 


828 

103 

184 

649 

126 

756,  757. 

758,  761 

170.  849 

602  p.  602  V 


Ixxxii 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Hall  V.  Vauness 

129 

V.  Waterhouse 

656 

V.  Williams  et  al. 

386  6 

V.  Wilson 

918 

V.  Young                        126, 

132, 

639 

Hallack  v.  Smith                 236, 

238, 

239 

Hallam  v.  Tillinghast 

122 

Halleuback  v.  Rogers 

144 

Hallett  V.  Collins 

228, 

230 

V.  Hallett 

576 

V.  Parker 

322 

V.  Thompson            386  a, 

655, 

682 

Hallett  &  Co.,  In  re 

828 

Halliburton  v.  Leslie 

52 

Halliday  v.  Hudson 

151 

152 

V.  Overton 

357 

V.  Summerville 

571 

Halloran  v.  Holmes 

221 

Hallows  V.  Lloyd 

284 

Halman  v.  Burla 

199 

Halmon's  Appeal 

900 

Halsey  v.  Halsey 

636 

V.  Tate 

864 

V.  Whitney 

592 

593 

Halstead,  In  re 

415 

418 

V.  Bank  of  Kentucky 

218 

219 

Halvorsen  v.  Halvorsen     232,  234,  235 

Haly  V.  Bannister  395 

Ham  V.  Ham  412 

Hamberlin  v.  Terry  160,  182 

Hambrooke  v.  Simmons  87 

Hamby  v.  Brooks  144 

Hamer  v.  Tilsley  477,  552 

Hamersley  v.  De  Biel  208,  368 

V.  Lambert  64 

V.  Smith  310  a,  646,  652,  653 

Hamerton  v.  Whitton  367 

Hamet  v.  Dundass  187 

Hamilton,  In  re  112 

V.  Bishop  647,  651 

V.  Buchanan  75 

V.  Buckminster  766 

O.Crosby  511  c,  785 

V.  Dooly  195 

V.  Fowlkes  239 

V.  Frye  276,  2S0 

V.  Grant  855 

V.  Hector  672 

V.  Houghton       585,  694,  595,  597, 

600 

V.  Lubukee  602  p 

V.  McKinney  75 

V.  Mills  626 

V.  Mound  City  M.  L.  L.  Co.     217 

V.  Royce  222 

V.  Watson  179 

V.  Wickson  126,  142 

V.  Wright  197,  427,  904 

Hamilton's  Estate  610 

Hamlen  v.  Bennett  149,  678 

Hamley  v.  Gilbert  612,  620 

Hamlin  v.  Hamlin  324 

Hammatt  v.  Emerson  171 

Hammerston's  Case  298 

Hammond  v.  Granger  287 

V.  Hammond  459 

V.  Hicks  863 

V.  Hopkins  195,  855 


Hammond  v.  Messenger  859 

V.  Neame  117,  118,  612,  620 

V.  Walker  826 

Hamnett's  Appeai  127 

Hampden  v.  Hampden  183 

V.  MUler  232 

V.  Rice  704,  748 

Hampshire  v.  Bradley  900 

Hampson  v.  Bramwood  901,  903  a 

V.  Fall  126 

Hampstead  v.  Johnson  592 

Hampton  v.  Foster  437  a 

V.  Moorhead  769 

V.  Spencer  82,  84,  85 

Hanbury,  In  re  112 

V.  Kirkland        261,  417,  418,  419, 

466,  509 

V.  Spooner  272 

Hanby  v.  Roberts  573 

Hanchett  v.  Briscoe  669,  850 

Hancock,  In  re  380,  381 

V.  Minott  662,  571 

V.  Smith  828 

V.  Titus  127 

Hancom  v.  Allen  444,  455 

Handick  v.  Wilkes  361 

Handlan  v.  Handlan  134 

Handley  v.  Davies  903  a 

V.  Lyons  232 

V.  Palmer  43,  448 

V.  Snodgrass  462,  468 

Handlin  v.  Davis  197 

Hands  v.  Hands  250,  258 

Handy  v.  Rice  217,  231 

Hane  v.  Vandeusen  237 

Haney  v.  Legg  127,  132,  865 

Hanford  v.  Prouty  613 

Hankey  v.  Garratt  429 

Hanks  v.  Hanks  95 

Hanley  v.  Downing  660,  662 

Hanna  v.  Clark  900,  902 

V.  McLaughlin  828,  836 

Hannah  v.  Carnahan  458,  768 

V.  Carrington     602  h,  602  i,  602  rn, 

602  dd 

V.  Hodgson  201 

Hanne  v.  Stevens  881 

Hannum  v.  Spear  598,  795 

Hanrion  v.  Hanrion  126,  142 

Hansborough  v.  Trustees  252 

Hanscom  v.  Marston  441 

Hansen  v.  Bethelsen  76 

Hanson  v.  Beverly  799,  808 

V.  Chapman  618 

V.  Edgerly  179 

V.  First  Pres.  Church  137 

V.  Hanson  127,  865 

V.  Jacks  891 

V.  Keating  633 

V.  Little  Sisters  of  the  Poor       729 

V.  Miller  639,  643 

V.  Svarverund  181 

V.  Worthington    261,  262,  869,  877 

Hapgood  V.  Perkins  441,  444 

V.  Rout  499 

Happy  V.  Morton  733 

Harbin  v.  Bell  260,  433 

V.  Darby  904 


INDEX    TO    CASES    CITED. 
[References  arc  to  sections.] 


Ixxxiii 


Harbison  v.  Lemon 
Harbster's  Estate 
Harcourt  v.  Harcourt 

V.  Knowle 

V.  White 
Harduge  v.  Stroope 
Hardcastle  v.  Fisher 


191 
305 
601 
218 
869 
358 
590,  600 


Harden  v.  Darwin  &  Pulley        48,  126 

V.  Parsons   416,  421,  441,  453,  850 

Hardenburgh  v.  Blair  386,  815  o 

Harder  v.  Harder  126,  137,  138 

Hardin  v.  Baird  82,  98 

Harding  v.  Glyn        112,  248,  249,  250, 

251,  256,  258,  699,  714 

V.  Handy  189,  190 

V.  Hardrett  220,  828 

V.  Larncd  453,  610 

V.  Randall  171 

Hardingham  v.  Nichols  219 

Hardman  v.  Ellamer  219 

Hardoon  v.  Belilios  485,  909 

Hardwick  v.  Mynd  402,  495,  503, 

779.  795,  804,  806,  867 

V.  Vernon  821,  863 

Hardy  v.  Boaz  677 

V.  Caley  246,  907 

V.  Call  891 

V.  Metropolitan  Land  Co.  444 

V.  Reeves  837,  862 

V.  Simpson  590 

V.  Skinner  590,  591 

Hare  v.  Sherewood  226 

Harford  v.  Baker  680 

V.  Lloyd  835 

V.  Purrier  122 

Hargis  v.  Sewall  855,  863,  864 

Hargreaves  v.  Mitchell  601,  863 

Hargthorpe  v.  Milforth  421 

Harinckell  v.  Orndorff  602  n 

Harker  v.  Reilly  160 

Harkin  v.  Darby  432 

Harkkader  v.  Leily  589 

Harlan  v.  Brown  788 

Harland  v.  Binks  593 

V.  Trigg  112,  113,  116 

Harland's  Appeal  918 

Harley  v.  Harley  626 

V.  Platts  311 

Harlow  v.  Mister  886 

Harmon  v.  Carver  602  r 

)'.  Smith  800 

Harmon's  Estate,  In  re  459,  460 

Harmood  v.  Oglander  13,  347,  563, 

866,  872 

Harnard  v.  Webster  847 

Harnett  v.  Maitland  477,  552 

V.  McDougall  670 

Harney  v.  First  Nat.  Bank  126 

Harpending  r.  Dutch  Church  45 

Harpar  ?'.  Archer  127 

V.  Harper  75 

V.  Hayes  770,  780 

11.  Mundav  901 

V.  Phelps               113,  116,  251,  253 

V.  Straws  275 

V.  Williams  239 

Harrigan  v.  Smith  855 

Harrington  v.  Brown  195,  205,  428 


Harrington  v.  Duchattel  214 

V.  Erie  County  Savings  Bank  195 
V.  Pier  448,  694,  728,  729,  748 

Harris  v.  Achilles  448 

r.  American  Bible  Society  715,  748 
V.  Banking  Co.  82,  86 

V.  Barnett  76,  77,  83 

V.  Brown  276  a 

V.  Carter  171 

V.  Collins  228 

V.  Dole  680 

V.  Du  Pasquier  711 

V.  Elliott  133,  843 

V.  Ferguy  300 

V.  Fly  669,  570.  576 

V.  Haines  109 

V.  Harlan  237 

V.  Harris  58,  276.  279,  347,  460, 
602  aa,  920 
V.  Ingledew  539,  595 

V.  Ingalls  448 

V.  Martin  918 

V.  McBane  873 

V.  Mclntyre  126,  141 

V.  Mott  654,  656 

V.  Newton  257 

V.  Norton  221 

V.  Pepperell  186 

V.  Pounds  890  o 

V.  Poyner  461.  552 

V.  Pugh  304 

V.  Roop  214 

V.  Siaght  716.  716 

V.  Smith  790 

V.  Sumner  591 

V.  Taylor  642 

V.  Tremenheere  202,  202  a,  206 
V.  Tyson  180 

V.  Union  Bank  126 

V.  Williamson  171 

Harrisburgh  Bank  v.  Tyler       127.  133. 

137,  138 

Harrison,  In  re  549,  554 

V.  Andrews  640 

V.  Asher  929 

V.  Battle  602  y.  602  I.  602  Jf 

V.  Boswell  862 

V.  Brolaskey  652,  653,  864 

V.  Brophy  715 

V.  FIcischman  828 

V.  Forth  222 

V.  Foster  451 

V.  Graham  261,  402,  416.  419, 

421 
V.  Guest  187.  195 

V.  Gurney  72 

V.  Harrison  94.  248.  251,  255. 

379.  380 
V.  HoUins  856 

V.  Howard  226 

V.  McMennomy  77 

V.  Manson  195,  602  v 

V.  Mock  209.  596,  890 

V.  Naylor  366,  372 

V.  Pepper  553 

V.  Prise  877,  929 

V.  Randall  476 

V.  Rowan  475 


Ixxxiv 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Harrison  v.  Rowley 

272 

V.  Smith 

828 

V.  Steward  son 

873 

885 

V.  Thexton 

440 

V.  Union  Trust  Co. 

275 

V.  Warner 

891 

Harrison's  Estate 

918 

919 

Trusts,  Re 

276 

546 

Harrod  v.  Fountleroy 

229 

Harrold  v.  Lade 

126.  129, 

206 

Harrop  v.  Howard 

670 

Harshman  v.  Lowe 

586 

Harston  v.  Tenison 

863 

Hart  V.  Bayliss 

299 

305 

V.  East  Union  Railway  752 

V.  McFarland  590 

V.  Middlehurst  361 

V.  Seymour  93,  305,  383 

V.  Stephens  640 

V.  Ten  Eyck  847 

V.  Tribe  112,  117,  620,  623 

Hart's  Appeal  863 

Estate  452,  460,  831,  843 

Hajter  v.  Capital  City  Brewing  Co. 

232,  235,  239 

Hartga  v.  Bank  of  England  242 

Hartley  v.  Hurie  310,  649 

Hart;man  v.  Dowdell  640,  641 

V.  Evans  602  x 

Hartman's  Appeal  282 

Hartopp  V.  Hartopp  201 

Hartshorne  v.  Nichols  714 

V.  Nicholson  700,  729 

Hartson  v.  Elden  706 

Hartwell  v.  Hartwell  214 

Hartzell  v.  Brown  900 

Harvard  College  v.  Amory        456,  459 

V.  Balch  511  c 

V.  Soc.  for  Promoting  Theol. 

Education  724,  735,  739 

Harvey,  In  re     348,  380,  381,  388,  555 

V.  Alexander  109 

V.  Ashley  34 

V.  Aston      512,  514,  515,  517,  518 

V.  Cook  185 

V.  Cubbedge  815  6,  820  a 

V.  Gardner  75,  260 

V.  Harvey  451,  632,  614,  616, 

647,  885 

V.  Ledbetter  126 

V.  Mix  589 

V.  Mount  187,  189,  192 

V.  Pennybacker  133,  137 

Harwood  v.  Fisher  640 

V.  West  112 

Hascall  v.  King  99,  398 

Hasell,  Ex  parte  865 

ti.  House  765 

Haseltine  v.  Shepherd  252 

Hasher  v.  Hasher  863 

Haskell  v.  Hervey  763 

Haskill  V.  Freeman  95 

Haslen  v.  Kean  254 

Haskin,  Matter  of  919 

Hassam  v.  Hazen  611  r 

Hassanclever  v.  Tucker  570,  571 

Hassard  v.  Rowe  606 

Hassel  v.  Hassel  570 


Hasshagen  v.  Hasshagen  76 
Hastie  &  Silver  v.  Aiken  863 
Hastings  v.  Baldwin  602 
V.  Belknap  692 
V.  Drew  242 
V.  Engle  358 
V.  Ord  104 
Hatch  V.  Hatch  195,  200 
V.  Nat.  Bank  122 
V.  Smith  585 
Hatchell  v.  Eggleso  633 
Hatcher  v.  Hatcher  232 
V.  Massey  815  a 
V.  McNamara  769 
Hatchett  jj.  Hatchett  253 
Hatfield  v.  Montgomery  228 
Hathaway  v.  Hathaway  121 
Hathorn  v.  Maynard  815  c 
Hathorne  v.  Root  920 
Hathornthwaite  v.  Russell  816,  819 
Hattersley  v.  Bissett  560 
Hatton  V.  Weems  910 
Haughton  v.  Haughton  515 
Hauk  V.  Van  Ingen  828 
Hault  V.  Townshend  768 
Hauser  v.  Lehman  420,  421 
V.  Shore       597,  794,  795,  797,  798 
Havana  Cent.  R.  Co.  v.  Knicker- 
bocker Tr.  Co.  122 
Havelock  v.  Havelock  615 
Haven  v.  Sibbald  594 
Havers  v.  Havers  818,  819 
Haviland  v.  Bloom  627 
V.  Myers  631,  6.32 
Hawes  v.  Chaille  239 
V.  Wyatt  192 
Hawken  v.  Bourne  486 
Hawker  v.  Hawker  308,  315 
Hawkin's  Appeal  200 
Trust,  In  re  272 
Hawkins  v.  Barney  855 
V.  Chapman                 314,  866,  869 
V.  Chappell  427,  771 
V.  Gordon  86 
V.  Hawkins  843 
V.  Kemp           273,  290,  602,  611  h, 
602  p,  800 
V.  Luscombe  309,  310 
V.  May                602/,  602  m,  602  p 
V.  Obeen  3.36 
V.  Obin  641 
Hawksley  v.  Barrow  668 
Hawley  v.  Cramer    195,  197,  202,  205, 
228,  480 
V.  James                72,  117,  160,  240, 
312,  324,  380,  396,  397, 
398,  404,  409,  511, 
562,  583,  779,  900 
V.  Ross  282,  341 
Hawtayne  v.  Bourne  486 
Hawthorne  v.  Browne  128 
V.  Ulrich  253 
Haxall  V.  Shippen  553 
Haxton  v.  Corse  396,  398 
V.  McClaren  104 
Hay  V.  Bacon  598 
V.  Master  112 
V.  Palmer  656 


INDEX    TO    CASES    CITED. 
[References  are  to  acctioQS.] 


Ixxxv 


Haydel  B.  Hurck  511  a,  910 

Hayden  v.  Uucklin  855 

V.  Charter  Oak  Driving  Park    221 

V.  Conn.  Hospital  713,  728 

V.  Laulleuburger  847 

V.  Stuart  238 

Haydou  v.  Stone  863,  865 

Haye  v.  Brewer  562 

Hayes,  Ex  parte  617,  618,  623 

In  re  511 c 

V.  Bayley  584 

V.  CarroU  133 

V.  Doane  590 

V.  Goode  229,  863 

V.  Hall  195 

V.  Hayes  380 

V.  Heidelberg  596 

V.  Hollis  139 

V.  Horine  232 

V.  Horton  144 

V.  Jackson  94,  562 

V.  Kershaw  97,  98,  109 

V.  Kindersley  146,  147 

V.  Kingdome       136,  146,  151,  161 

ti.  Marsh  75 

V.  OteUy  921 

V.  Parker  624 

V.  Robeson  603 

V.  Tabor  299 

V.  Walker  864 

V.  Ward  72,  210 

Hayne  v.  Hayne  183 

Haynes  v.  Carr  694,  728,  729,  748 

V.  Forshaw  809,  811 

V.  Redington  455 

Haynesworth  v.  Cox  511  a 

Hays  V.  Applegate  466 

V.  Jackson  94,  562 

V.  Leonard  652,  655,  661 

V.  Quay  82,  139 

V.  Reger  79 

Hayter  v.  Trego  722,  729,  731 

Hayton  v.  Wolfe  264 

Hayward  v.  Cope  179 

0.  Hayward  637,  642,  644 

V.  Ovey  878 

V.  Spaulding  262 

Haywood  t.  Craven  748 

V.  Ensley  75 

Hazard  v.  Coyle  909 

V.  Durant  429,  468,  471 

V.  Irwin  171 

Hazel  V.  Hogan  505 

V.  Woods  505 

Hazeltine  v.  Fourney  828 

V.  Keenan  225,  800 

Hazelton  v.  Valentine  440 

Heacock  v.  Coatesworth  135 

V.  Fly  184 

Head  v.  Egerton  219 

V.  Gould  343,  420,  454 

V.  Head  672,  673 

r.  Providence  Ins.  Co.  44 

r.  Tevnham  878 

Head's  Trustees,  In  re  308,  567 

Headen  v.  Quillian  765 

Heager's  Ex'rs  538 

Heald  v.  Hoald  476  a 


Healey,  In  re 

636 

Healy  v.  Alston 

347 

V.  Rowan 

34 

V.  Toppan 

548 

Heap  V.  Tongue 

185 

Heard  v.  Eldredge 

545 

918 

V.  Pilley 

206 

V.  Read 

498, 

706 

783 

Hcardson  v.  Williamson  312,  317 

Hearle  v.  Botelers  239 

V.  Greenback  33,  48,  52,  324, 

489,  615 

Hearn  v.  Crutcher  602 

V.  Hearn  843 

Hearns  v.  Savage  918 

V.  Watcrbury  Hospital  747 

Heartley  v.  Nicholson  96 

Heath  v.  Bishop  386  a,  555 

V.  Erie  R.  R.  Co.       848,  875,  876. 

877 

V.  Heath  628,  632 

V.  Henly  863 

V.  Knapp  336,  337 

V.  Lears  555 

V.  Lewis  516 

V.  Miller  677,  920 

V.  Page  129 

V.  Percival  878 

V.  Slocum  127 

V.  Withington  611  6 

Heathcote,  In  re  394,  584 

V.  Hulme  468,  470 

V.  Paignon  187 

Heathcote's  Estate  570 

Heathman  v.  Hall  647,  648 

Heath's  Appeal  181 

Heatley  v.  Finster  221 

V.  Thomas  611  b,  657,  662 

Heaton,  Ex  parte  454 

Matter  of  610 

V.  Hassell  635 

V.  Marriott  416 

Hebblcthwait  v.  Cartwright  578 

Hecht  V.  Slaney  865 

Heck  V.  Clippenger  647,  648,  651 

Heckert's  Appeal  918 

Heckscher  v.  Blanton  209,  427 

Hcddleston  v.  Stoner  181 

Hedges  v.  Ricker  528,  769 

Hcfferman  v.  Addams  511  c 

Hegeman's  Ex'rs  v.  Roome  748 

Heiphe  v.  Littig  546 

Heidonheimer  v.  Bauman  93,  159 

Hcighe  V.  Littig  548 

Hcighington  v.  Grant  471,  902 

HeiKhton  v.  Grant  903  a 

Hoilnor  v.  Imbrie  218 

Heinisch  v.  Pennington  181,  828, 

855,  865 

Heinz  ?-.  White  212 

Heiskell  v.  Chickasaw  Lodge  729,  748 

V.  Powell  126 

r.  Trout  132,  151 

Heist  V.  Baker  232 

Hclan  V.  Russell  701 

Helfensteine  v.  Garrard  299 

Hellcgas  v.  Hellegas  602  t 

Hellman  v.  McWilliams  86 


Ixxxvi 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.) 


Hellman's  Will  927 

Helm's  Ex'r  v.  Rogers  863 

Hclmey  v.  Heitcamp  602  jf 

Helms  V.  Frauciscus  627,  631,  636, 

645 

Hem  V.  Rushowski  602  hb 
Hemenway  v.  Hemenway         544,  547, 

556 

Hemmer  v.  Cooper  173 

Hemmings  v.  Munckly  514,  515,  517 

Hemmingway  1).  Mathews  640 

Hempfield  R.  R.  Co.  v.  Thornbury  232 

Hemphill's  Appeal  440,  456,  459, 

460,  465,  918 

Estate  918 

Hempstead  v.  Hempstead  126 

Henchey  v.  Henchey  82,  843 

Henchman  v.  Att.-Gen.  329 

Henderson  v.  Adama  299,  309 

V.  Atkins  576 

V.  Burton  232 

X).  Cross  152 

V.  Downing  590,  591 

V.  Henderson  100 

V.  HiU  300,  312,  815  a 

V.  Hoke  126,  133 

V.  Hunter  312,  744,  748 

V.  Kennicott  580 

V.  Mclver  912 

V.  Murray  181 

V.  Rushing  815  5 

V.  Vaulx  541 

V.  Warmack  127 

V.  Williams  765 

Henderson's  Appeal  589 

Hendrick  v.  Hopkins  191 

Hendricks  v.  Nunn  166 

V.  Robinson  428 

Hendrickson  v.  Decow  730,  733 

V.  Hendrickson  855,  865 

Heneke  v.  Plorin  137 

Hengst's  Appeal  416,  417 

Henkle  v.  Royal  Ins.  Co.  226 

Henley  v.  Axe  188 

V.  Cook  185 

V.  Philips  900 

V.  Stone  873 

Honnershotz's  Estate  154 

Hennessey  v.  Brav  265,  846 

V.  Western  591,  592,  599 

Henry  v.  Dilley  676 

V.  Doctor  282 

V.  Henderson  556 

V.  Morgan  222,  330 

V.  Raiman  202 

V.  Smith  660 

Henry  County  v.  Winnebago    230,  728 

Henschel  v.  Mamero  171 

Henshaw  v.  Morpeth  694 

V.  Sumner  586 

Hensman  v.  Hackney  724 

Henson  v.  Kinard  98 

V.  Wright  305,  920 

Henszey's  Estate  448,  510 

HenvoU  v.  Whittaker  570 

Hepburn  v.  Dunlop  173 

X.  Snyder  232 

Hepburn's  Appeal  652,  899 


Herbergham  v.  Vincent 

92 

Herbert  v.  Blunden 

359 

V.  Hanrick 

782 

V.  Herbert 

477 

V.  Lownes 

182 

V.  ScoflBeld 

232 

V.  Smith 

195 

V.  Webster 

671 

Hercy  v.  Dinwoody 

867,  869 

Hereford  v.  Adams  698,  699,  725 

V.  Ravenhill  461 

Heriots's  Hospital  v.  Rosa        744,  907, 

910,  914 

Herlihy  v.  Coney  126.  133,  206 

Hermstead's  Appeal  918 

Herndon  v.  Pratt  858 

Heme  v.  Meeres  187,  195,  428 

Heron  v.  Heron  137,  210 

Herr  v.  Payson  202  h 

Herr's  Appeal  647 

Herr's  Estate  195,  428 

Herrick  v.  Fowler  254 

V.  Low  276  a 

V.  Snow  843 

Hertell  v.  Bogert  225,  814 

Hertzfeld  v.  Bailey  239 

Hervey  v.  Audland  111 

Herzog  r.  Title  Guarantee  &  T.  Co. 

391 

Hesketh  v.  Murphy  699 

Hess  V.  Dean  779 

He.ss's  Estate  468 

Hester  v.  Hester  500  v,  602,  894 

V.  Wilkinson  438,  439,  618 

Hetfield  v.  Debaud  443,  452,  462 

Heth  V.  Richmond  458,  836,  847 

Hetzel  V.  Hetzel  254,  498,  511  a 

Heugh  V.  Jones  680 

Heuser  v.  Harris  699,  748 

Hewes  v.  Dehon  562,  566 

Hewett  V.  Foster  419,  424,  902 

V.  Hewett  249,  255,  492 

V.  Wotton  693 

Hewit  V.  Hewit  508,  510 

Hewitt  V.  Crane  201 

V.  Loosemore  236 

V.  Morris  550,  551 

Heyer  v.  Burger  674 

Heysham  v.  Heysham  614 

Hey  wood  v.  Buffalo  660 

Hibbard  v.  Lamb        19,  275,  497,  503. 

504,  721 

Hibbert  v.  Cook  477,  552,  913 

V.  Hibbert  123,  907 

Hichens  v.  KeUy  873 

Hickens  v.  Congreve  885 

Hickey  v.  Burt  330 

V.  Young  137 

Hickley  v.  Farmers',  &c.  Bank         5S5 

Hicklins  v.  Boyer  552 

Hickman  v.  Stewart  195 

V.  Upsall  929 

Hickory  v.  Railroad  43,  259 

Hicks,  Matter  of  828 

V.  Hicks  851 

V.  Nat.  Surety  Co.  81.5  c 

V.  Sallitt  871,  872 

V.  Wrench  899 


INDEX    TO    CA8ES    CITED. 


Ixxxvii 


[References  are  to  sections.) 


Hickson  v.  Culbert 

V.  Elliott 

V.  Fitzgerald 
Hidden  v.  Hidden 

V.  Jordan 
Hide  V.  Haywood 
Hieronymous  v.  Mayball 
Hiett  V.  Hiett 
Higbee  v.  Higbee 

V.  Rice 
Higginbottom  v.  Holme 


126,  147 

873 

271,  898 

448 

134 

909,  910 

861 

672,  673 

134 

302 

96,  388, 

655 

V.  Peyton  86 

Higgius  V.  Joyce  178 

Higginson  v.  Barneby  275 

V.  Turner  43 

High  V.  Batte  218,  221,  239 

Highway  v.  Banner  362 

Hildreth  i'.  Eliot  104 

Hileman  v.  Bouslaugh  358 

Hilcs  V.  Garrison  276  a 

Hill,  Ex  parte  207,  555 

In  re  450,  548 

V.  Anderson  53 

V.  Atkinson  480 

V.  Bean  570 

V.  Brown  431 

V.  Buckley  770 

V.  Burns  705,  724 

V.  Chapman  614 

V.  Conrad  511  c 

V.  Cook  152 

V.  Cornwall  96,  104,  598 

V.  Davis  426 

V.  Durand  873 

V.  Edmonds  633 

V.  Flemming  226,  828 

V.  Fogg  242 

V.  Gianelli  392 

V.  Giles  358 

V.  Gomme  846 

V.  Gray  173 

V.  HUl     87,  94,  112,  376,  627,  645, 
672,  767 
V.  Josselvn  411 

V.  London  116,  151,  152,  158 

V.  Magan  891,  907 

V.  Manchester  W.  Works  752 

V.  Meinhard  144 

V.  Miles  122,  828 

V.  Morgan  _  747,  891 

V.  Ncwichawanick  Co.  656 

V.  Page  112 

V.  Paul  69 

V.  Pine  River  Bank  143 

V.  Reardon  70 

V.  Simpson  225,  810,  811,  814, 

816 

V.  Tierney  846 

V.  True  127,  828 

V.  Walker  481 

Hill.  Fontaine  &  Co.  v.  Coolidge      828 

Hillary  v.  Waller       349,  351,  352,  3.54. 

866,  867 

Hilleglass  v.  Hilleglass  782 

Hillen  v.  Iselin  383 

Hilliard,  Ex  parte  463,  464 

Hillier  v.  Jones  578 


Hillman  v.  Westwood  286 

HUlyard  v.  Miller     393,  399,  738,  748, 

765 
Hillyer  v.  Bennett  53 

Hilton  V.  Girard  86 

V.  Kenworthv  308 

V.  Sowenfield  499 

Himrod  v.  Gilman  831 

Hinohcl  v.  Daley  905 

Hinchonbroke  v.  Seymour  511  a 

Hinchmal  v.  Emans  184 

Hinckley  v.  Hinckley  335 

V.  Maclaerns  267 

Hincklev's  Estate  737 

Hind  V.  Poole  414,  496 

V.  Sellv  461 

Hinde  v.  Blake  685,  593,  826,  827 

Hindraan  v.  Dill  590,  591 

Hindmarsh  v.  Southgate  63 

Hind's  Estate  639 

Hinds  V.  Hinds  261  a 

V.  Mooers  602  n 

Hindson  v.  Weatherill  199,  202 

Hines  v.  Spi-uill  659 

Hinkle  i'.  Wanzer  68 

Hinney  v.  Phillips  679 

Hinnings  v.  Hinnings  930 

Hinson  v.  Williamson         416,  500,  603 
Hinton,  Ex  parte  388 

V.  Hinton  192,  322 

V.  Kennedy  466 

V.  Pritchard  171,  206,  602  o 

Hintze  v.  Stingel  781 

Hinves  v.  Hinves  450,  451,  664 

Hinxman  v.  Poynder  112 

Hinze  v.  Hinze  861 

Hipkins  v.  Bernard  918 

Hipp  V.  Hutchell  602  e 

Hirsch,  Matter  of        197,  275,  427,465 
Hirshfield  v.  Howard  126,  133 

Hiscock  V.  Phelps  815  c 

Hiserodt  v.  Haralett  104 

Hiss  V.  Hiss  82,  91 

Historical    Soc.   v.   Academy   of 

Science  748 

Hitch  Leworthy  v .  Stonebraker         269 , 
282,  341,  408,  508 
Hitchcock  V.  Bank  of  United  States 

263 

Hitchons  v.  Kitchens  317 

Hitchins,  In  re  347 

Hite  V.  Hite       229,  544,  546,  647,  648, 

576,  918 

Hitner  v.  Ege  554 

Hitner's  Appeal  672 

Hitz  V.  National  Met.  Bank  145 

Hoag  V.  Kenney  250 

Hoare  v.  Hoare  672,  701 

V.  Osborne  706,  714 

?'.  Parker  542 

V.  Peck  862 

Hoare' s  Case  486 

Hoback  v.  Miller  610 

Hobart  v.  Andrews  595 

V.  Suffolk  152,  153 

Hobbs  V.  Hull  672 

V.  McLean  919 

V.  Parker  175 


Ixxxviii 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Hobbs  V.  Wayet  486 
Hobday  v.  Petera      203,  440,  845,  848, 

849 

Hoblyn  v.  Hoblyn  201 

Hoboken  Bank  v.  Schwoon  82 

Hobson  V.  BeU  602  o,  786 

9.  Blackburn  573 

V.  Staneer  873 

V.  Thelluson  696 

V.  Trevor  68,  872 

V.  Whitlow  828 

Hockenbury  v.  Carlisle  202 

Hocking,  In  re  66 

Hockley  v.  Bantock  469 

V.  Mawley  260,  251 

Hockman  v.  Thuma  223 

Hodgdon  v.  Shannon  275 

Hodge  V.  Att.-Gen.  40 

V.  Hawkins  471,  472,  918 

V.  Wyatt  590 

Hodgens  v.  Hodgena  636 

Hodges, /n  re  510,511,611a 

V.  Blagrave  786 

V.  Bullock  828 

V.  Cobb  678 

V.  Hodges  671 

V.  New  England  Screw  Co.        207 

Hodges'  Estate  262,  429,  462,  463, 

468 

Hodgkinson,  In  re  903 

Hodgson  V.  Bibby  850 

v.  Bussey  363 

V.  Hodgson  613 

Hodgson's  Settlement  297 

Hodkinson  v.  Quinn  802,  803 

Hodle  V.  Healey  862 

Hodnett's  Estate  159,  181 

Hodson  V.  Ball  385 

Hoeffer  v.  Clogaa  715 

Hoes  V.  Van  Hoesen  669,  571 

Hoffea's  Estate  729 

Hoffman  v.  Anthony  602  q 

V.  Canow  128 

V.  N.  E.  Trust  Co.  920 

Hofsas  V.  Cummings  99 

Hogan  V.  Jaques  162 

V.  Lepretre  602  k 

V.  Staghorn  150 

V.  Wyman  58 

Hoge  V.  Hoge  171,  181,  185,  206 

Hoghton  V.  Hoghton  185,  194,  201 

Hogue  V.  Steele  127 

HoUe  V.  Bailey  843 

Holbrook  v.  Allen  585 

V.  Comstock  672 

V.  Holbrook  545 

V.  Waters  629,  642 

Holcomb  V.  Coryell  275 

V.  Holcomb  411,  419,  510,  910 

Holden  v.  Crawford  187 

V.  New  York  &  Erie  Bank         242 

Holder,  In  re  448 

V.  Durbin  277,  287 

V.  Nunnelley  137 

Holderman  v.  Hood  843.  848,  877 

Holdom  V.  Ancient  Order  of  United 

Workmen  181 

Holdridge  v.  Gillespie  538 


Holdship  V.  Patterson 

386a 

Holdsworth  v.  Goose 

784 

V.  Shannon 

770 

Holford  V.  Phipps 

901,  921 

V.  Wood 

571 

Holgate  V.  Eaton 

127 

Holgate  V.  Hay  worth 

900 

V.  Jennings 

451,  551 

Holland  v.  Alcock       99, 

701, 

710,  713. 
723 

V.  Baker 

873 

874,  886 

V.  Holland 

260 

V.  Hughes 

467 

V.  Peck 

713 

724,  748 

Holland's  Case 

17 

Holland  Tr.  Co.  v.  Sutherland       476  a 

HoUenbeck  v.  Pixley  672 

HoUiday  v.  Coleman  541 

V.  Hively             647,  655,  661,  671 

V.  Perry  126,  133,  142 

Hollins  V.  Brierfield  Coal  Co.            242 

Hollinshead's  Appeal  76 

Hollinshed  v.  Allen  82 

V.  Simms  166 

Hollis  V.  HoUis  126 

Hollis's  Case  863 

Hollis-Street    Meeting-house     v. 

Pierpont  734 

Hollister  v.  Shaw  511  c 

Holloway  v.  Headington  108,  170,  367 

V.  Wilkerson  137 

Holly  V.  Missionary  Soc.  815  c 

Holman,  Ex  parte  352 

V.  Loynes  202 

Holman's  Appeal  562 

Holme  V.  Williams  768 

Holmes,  Re  72,  828 

V.  Bell  8S3 

V.  Bushnell  305,  386  a 

V.  Campbell  129 

V.  Coates  705 

V.  Coghill  108,  511  b 

V.  Dalley  112 

V.  Deppert  223 

V.  Dring  453,  621 

V.  Fresh  187 

V.  Gilman  429,  828,  836 

V.  Holmes    171,  172,  206,  312,  357 

V.  Joslin  618 

V.  Lysight  514 

V.  Mead  748 

V.  Mitchell  546 

V.  Penney  386  h 

V.  Pickett  299 

V.  Stone  218 

V.  Taber  554 

V.  Turner's  Falls  Co.  199 

V.  Walter  383,  391 

Holroyd  v.  Marshall  68 

Holshouser   v.  Copper  Co.  242 

Holt  V.  Agnew  204 

V.  Hamlin  610 

V.  Hogan  254 

V.  Holt  129,  196,  538 

Holt's  Ex'r  V.  Deshoa  568 

Homan  v.  Hague  886 

Home  V.  Patrick  654 

Home  Bank  J).  Peoria  Trotting  Soc.  218 


INDEX    TO    CASES    CITED. 
[References  are  to  seotionB.] 


Ixxxi'x 


Homer  v.  Homer  82,  127 

V.  Shelton  547 

Hon  V.  Hon  86 

Honaker  Sons  v.  Duff  386  a,  815  a 

Hone  V.  Van  Schaick  380 

Honuer  v.  Morton  626,  639 

Honnctt  v.  \\  illiams  386  a 

Honor  v.  Honor  361,  362 

Honore  v.  Bakewell  237,  238,  239 

V.  Bridport  606 

V.  Hutchins  133 

Honywood  v.  Honywood  546 

Hoobcrrv  v.  Harding  300 

Hood  D.  Bramlett  252.511a 

V.  Clapham  451,  467,  931 

V.  Dorer  701,  729,  731,  748 

V.  Fahnestock  217,  222 

».  Haden  248,5116 

V.  Hammond  232,  234,  237 

V.  Oglander  113,  115,  386 

V.  Phillips  348 

Hood-Barrs  v.  Heriot  671 

Hook  V.  Dyer  341,  464 

V.  Dundas  612,  555 

V.  Kinnear  874 

V.  Lowry  471 

Hoon  V.  Hoon  137,  144 

Hooper  v.  Evles  137 

V.  Felguej  299,  309,  310  a 

V.  Holmes  86 

V.  Hooper  393,  737 

V.  Rossiter  644,  545 

V.  Savage  462 

V.  Schoimer  328 

V.  Tuckerman  590 

Hoot  V.  Sorrell  664 

Hoover  v.  Hoover  571,  796 

V.  Samaritan  Society  667 

v.  Strauss  358 

Hope  V.  Brewer  72,  741 

V.  Carnegie  71 

V.  Clifden  580 

V.  D'H6douviIle  648,  551 

V.  Fox  889 

V.  Gloucester  869 

V.  Harman  103 

v.  Hayley  68 

V.  Hope  603 

V.  Johnson  308 

V.  Liddell  245,  337,  806,  846 

V.  Stone  246  a 

Hopkins  v.  Burr  828 

V.  Gluut  112 

V.  Grimshaw       160.  381,  384,  705. 

706,  736,  901,  910 

V.  Hopkins  151,  299,  301,  304, 

385,  863 

V.  MyaU  460,  467,  655 

V.  Ray  590 

V.  Turnpike  Co.  31 

V.  Upshur  748 

V.  Ward  17,  328 

Hopkinson  v.  Burghly  821 

V.  Dumas  126,  322,  324,  347 

V.  Ellis  903  a 

V.  Roe  912 

Hopper  V.  Adee  414 

».  Conyers  837,  839,  842 


Hopper  V.  Hopper 
Hoppes  V.  Check 
Hora  V.  Hora 
Hord  V.  Hord 
Horde  v.  Suffolk 
Hore  V.  Beecher 

V.  Woufle 
Horn  V.  Barton 

V.  Horn 

V.  Lockhart 
Hornbeck  v.  Am.  Bible  Soc. 
Home,  In  re 

V.  Askham 


i*.  Barton 

V.  Higgins 

V.  Lyeth 
Horner  v.  Swann 
Horns  by  v.  Lee 
Horrey  v.  Glover 
Horrock  v.  Ledsam 
Horseley  v.  Chaloner 

V.  Fawcett 
Horsey  v.  Hough 
Horsfall,  In  re 
Horton  v.  Brocklehurst 

V.  Horner 

V.  Horton 

V.  Riley 

v.  Sledge 

V.  Smith 
Hortopp  V.  Hortopp 
Horwitz  V.  Norris 
Horwood  V.  West 


195 

770 

118 

632 

705,  712 

184.  633 

639 

767 

796 

456 

730 

543 

511  a 

361,  371,  375 

75 

369,  370 

765 

639 

640,  546,  547 

878,  892 

171,  443 

884 

187,  602  z 

337 

440,  821 

238 

309,  310 

212 

299 

347,  348 

172 

264 

112 

Hosack  V.  Rogers  593,  826,  894,  918 
Hosch  Lumber  Co.  v.  Weeks  411,  412 
Hosea  v.  Jacobs  381,  748 

Hosford.  In  re  448 

V.  Merwin  98 

Hoskins  v.  Nichols  468,  887 

Hospes    V.  Northwestern    Manuf. 

Co.  242 

Hotchkins  v.  Gallatin  Turnpike        588 

Hotchkias  v.  P'ortson  191 

Hotchkys,  In  re  477,  540,  552 

Hotel  Co.  «.  Wade  206 

Hotz's  Estate  514 

Houck  V.  Houck  501 

Hough,  In  re  309 

V.  Blythe  685 

V.  Harvey  918  n 

V.  Richardson     171,  173,  174,  175, 

228 

Hougham  v.  Sandys  511  c,  785 

Houghton,  Ex  parte  126.  130.  131 

V.  Davenport  815  6,  828 

V.  Davis  595 

V.  Hapgood  324 

V.  Pierce  863,  866 

House  V.  Kountze  87 

V.  Way  449 

Houser  v.  Richardson  438,  926 

V.  Riley  846 

Houston  V.  Embry  649,  651 

V.  Houston  610 

V.  Nat.  Mut.  B'ld'g  Ass'n         199. 

602  V,  602  7v 

V.  Nowland  693 


xc 


INDEX   TO    CASES    CITED. 
IReferenoea  are  to  sections.] 


Houston  V.  Thornton  177 

Hovenden  v.  Annesley        40.  228,  229, 

325,  855,  857,  858,  861,  862, 

865 

Hovey  v.  Blakeman  417,  421,  422,  423, 

670 

V.  Blanchard  222 

V.  Bradbury  863,  864 

V.  Dary  448,  510 

How  V.  Bishop  142 

V.  Camp  216,  585 

V.  Godfrey  904,  910 

V.  Hutch  299 

V.  Sherewood  226 

V.  Weldon  171,  187,  188 

V.  Winterton  864 

Howard,  Matter  of  415,  417,  418 

V.  Aiken  863 

V.  American  Peace  Society       262, 

699,  724,  748 

V.  Ames  602  o 

V.  Chaffers  676,  805 

V.  Digby  665 

V.  Duncom  787 

V.  EdgeU  187 

V.  Fay  828,  838 

V.  Gilbert  282,  881 

V.  Hatch  602  r 

V.  Henderson  300 

V.  Hooker  213,  653 

V.  Howard  137,  144 

V.  Jemmet  837 

V.  Manning  446,  468 

V.  Moffatt  545 

V.  Morton  627 

V.  Papera  816,  818,  819 

V.  Rhodes  276,  280,  282,  283, 

901 

V.  Savings  Bank  98 

V.  Thornton  402 

V.  Waters  275 

V.  Whitfield  495 

Howard  Ins.  Co.  v.  Halsey  222 

Howarth  v.  Mills  66 

Howden  v.  Haight  212 

V.  Rogers  72 

Howe,  In  matter  of  43,  44 

V.  Dartmouth    440,  444,  450,  455, 

467,  541,  547,  548,  549,  848 

V.  Freeman  759 

V.  Howe  126,  450,  451,  547 

V.  Medcraft  572 

V.  Morse  383,  392 

V.  School  District  734 

V.  Waldron  920 

Howell  V.  Ashmore  218 

V.  Baker  135 

V.  Barnes  493,  765 

V.  Edgar  592 

V.  Hanforth  556 

V.  Howell    126,  362,  641,  633,  865, 

872 

V.  Jump  324 

V.  Mellon  448 

V.  Price  564 

V.  Ransom  202 

V.  Whitchurch  182 


Howell's  Estate 
Howells  V.  Hettrick 
Hower  v.  Geesamaa 
Howes,  In  re 
Howgrave  v.  C artier 
Howman  v.  Currie 
Ho  worth  V.  Dewell 
Hows  V.  Butterworth 
Howse  V.  Chapman 
Howth  V.  Owens 
Hoxie  V.  Carr 

II.  Finney 

V.  Hoxie 
Hoy  V.  Master 
Hoyle  II.  Jones 

V.  Stowe 
Hoysradt,  In  re 
Hoyt,  In  re 

V.  Hilton 

V.  Latham 
Hubbard  v.  Elmer 

V.  Fisher 


472 

816  e 

330 

82 

580 

640 

116 

127 

704,  903  a 

875,  882 

126,  137,  814 

540 

121 

113,  115 

861 

530 

276 

99,  547,  550 

624 

196 

769 

918 


V.  German  Cath.  Cong.      730,  768 

V.  Goodwin  64,  131 

V.  Hayes  386  a 

V.  Lloyd  263,  574 

V.  Manhattan  Trust  Co.  855 

V.  U.  S.  Mortgage  Co.  863 

V.  Worcester  Art  Museum        730, 

733 

V.  Young  451 

Hubbell  V.  Hendrickson  232,  239 

V.  Hubbell  876 

V.  Medbury  864 

Hubbell  Trust,  In  re  484,  529, 

530 

Hubble  V.  Osborne  147 

Hubbuck,  In  re  547 

Huckabee  v.  Billingsly  498,  602  k,  921 

Huddleston,  In  re  511  c 

Hudson  V.  Cahoon  861 

V.  Carmichael  667 

V.  Hudson  205,  414,  425,  863 

V.  Maze  590,  600 

V.  Morris  171 

V.  Parker  Machine  Co.  592 

V.  Wadsworth  541 

V.  White  79 

V.  Wright  127,  144,  815  b 

Huey  V.  Prince  696 

Huff,  Ex  parte  461 

V.  Earle  602  v 

V.  Latimer  656 

V.  Wright  684 

Huger  V.  Huger  610,  780 

Hugh  V.  Smith  471 

Hughes,  Ex  parte  209,  285 

V.  Bent  181 

V.  Brown  284,  873,  886 

V.  Caldwell  336 

V.  Edwards  65,  226,  228 

V.  Empson  439,  462 

V.  Evans  160,  158,  169 

V.  Fitzgerald  112 

V.  Garner  220 

V.  Garth  219 

«.  Hall  71 


INDEX    TO    CASES    CITED. 
[References  are  to  sectiona.] 


XCI 


Hughes  r.  Hamilton  655 

V.  Hughes  612,  613 

V.  Kearney  232,  235,  236 

V.  Key  884,  888 

V.  Loan  Ass'n  299 

V.  MiUe  669 

V.  Nicklas  358 

V.  People  429,  468,  471 

V.  Peters  681 

V.  Tabb  790,  794 

V.  Turner  511  c 

V.  W(;lls  40,  240,  325,  667 

V.  Williams  243 

V.  Willson  171 

V.  Wilson  206 

V.  Wynne  600,  601 

Hughlett  V.  Hughlett  418,  426 

Hughson  V.  Cookson  882 

V.  Mandeville  218 

Huguenin  v.  Baseley  104,  171,  181, 

184,  187,  189,  192,  204,  206, 

210,  211,  511  a 

Hulburt's  Assignment  598 

Hulkes  V.  Barrow  532,  533 

Hull  V.  Hull  397,  398 

V.  Osborn  381 

Hullman  v.  Honcomp  707,  748 

Hulls  V.  Jeffrey  586 

Hulme  V.  Hulme  285,  286,  402 

V.  Tenant            654,  655,  657,  662, 

670 

Hulse  V.  Wright  594 

Humberstone  v.  Chase  242,  875 

V.  Humberstone  376,  383,  390 

Humbert  v.  Trinity  Church        45,  855 

Humble  v.  Bill  796,  809,  815 

Hume  V.  Richardson  551 

Hummer  v.  Schott  232 

Humph  V.  Morse  892 

Humphrey  v.  Campbell  252,  254 

t;.  Hollis  874 

V.  Morse  269 

V.  Richards  664,  668 

Humphreys  v.  Butler  429 

Hun  V.  Cary  401,  459 

Hungate  v.  Hungate  126 

Hungerford  v.  Earle  590 

Hunnewell  v.  Lane  80 

Hunt,  Matter  of  918,  919 

V.  Ball  602  o 

V.  Bass  205,  602  c,  602  ec,  771 

V.  Bateman  558 

V.  Booth  647 

V.  Bullock  759 

V.  Crawford  328 

V.  Elliott  86 

V.  Evans  91 

V.  Fisher  786  a 

V.  Friedman  134 

V.  Gontram  459 

V.  Hamilton  182 

V.  Holden  500 

V.  Hunt        299,  305,  347,  456,  672 

V.  Luck  223 

V.  Maldonado  603 

V.  Mathews  183,  208,  213 

V.  Moore  140,  171,  189 

V.  Peacock  882 


Hunt  V.  Rousmaniere 

V.  Scott 

V.  Townshend 

V.  Watkins 

V.  Wheeler 
Hunt,  Appellant 
Hunt's  Appeal 
Hunter  v.  Anderson 

V.  Atkins 

V.  Baxter 

V.  Gibson 

V.  Hallett 

V.  Hubbard 

V.  Hunter 

V.  Lawrence 

V.  Marlboro' 

V.  Simrall 

V.  Stembridge 

V.  Wood 
Hunter's  Will 


184,  226,  499 

451 

783 

546 

568 

443,  453 

448 

324,  499,  505 

190,  195.  210 

481 

282 

639 

864 

98, 117 

225 

137 

219,  221 

112,  117 

237 

182 

Huntington  v.  Huntington  621 

V.  Jones  386  a,  815  a 

V.  Spear  299,  764 

Huntington  Bank  v.  Distilling  Co.    861 

Huntley  v.  Buckner  602  an 

V.  Denny  245 

Huntly  V.  Huntly         38,  95,  240,  674, 

863 

Hunton  v.  Davies  869 

Huntress  v.  Allen  386  a 

Huntsville  v.  Smith  729,  748 

Hurd  V.  Silsbee  592 

V.  Y.  M.  C.  A.  Steam  Laundry  242 

Hurlburt  v.  Durant  918 

Hurley,  Ex  parte  780 

Hurst,  In  re  574 

V.  Leckie  590,  591,  592 

V.  McNeil  77,  299,  301 

Husband  v.  Davis  412 

t).  Pollard  111 

Huskisson  v.  Bridge  112,  115 

Hussey,  Ex  parte  282 

V.  Arnold  437  a,  815  b 

V.  Castle  122 

V.  Markham  271,  503 

Husted  V.  Thomson  843 

Huston  V.  Cassidy  205 

V.  Neil  322 

V.  Tribbetts  554 

Hutcheson  v.  Hammond  160,  476, 

480,  574,  915 

V.  Hodnett  484 

Hutchings,  Re  671 

V.  Smith  641 

Hutchins  v.  Baldwin  499 

V.  Colby  678 

V.  Heywood        142,  165,  298,  299, 

301,  305 

V.  Lee  82,  86,  151.  162,  226 

p.  State  Bank  814 

V.  Van  Vechten  82 

Hutchinson  v.  Brown  175,  191 

V.  Hutchinson     127.  181,  256.  258 

V.  Le  Roy  828 

V.  Lord  590 

V.  Maxwell  386  a,  815  a 

V.  Morritt  427 

V.  Nat.  Bank  of  Commerce        828 


xcu 


HutchiDson  V.  Patrick 
V.  Reid 
V.  Smith 
V.  Tindall 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


239 

877 

846 

76,  79,  82,  85,  162, 

189,  191 


V.  Tottenham 

V.  Townsend 

V.  Underwood 
Hutt  V.  Fletcher 
Button  V.  Annan 

V.  Duey 

V.  Simpson 

V.  Weems 
Huxley  v.  Rice 
Huyler  v.  Kingsland 
Hyatt  V.  Allen 
Hyde  v.  Holmes 

V.  Price 

V.  Warren 

V.  Wason 

V.  Woods 
Hyde's  Ex'r  v.  Hyde 
Hyden  v.  Hyden 
Hyland  v.  Roe 
Hylton  V.  Hylton 
Hyman  v.  Devereux 
Hyndman  v.  Hyndman 
Hynshaw  v.  Morpeth 
Hyelop  V.  Clarke 


248,  254 

882 

680 

869 

460 

672,  673 

871 

476,  915 

169 

766 

556 

545 

672,  674 

602  c,  602  g,  602  h 

476  a,  920 

386  a 

711 

137,  498 

828 

195,  200,  851 

602  g,  602  ee 

602  « 

700 

592 


lasigi  V.  Chicago,  &c.  R.  Co.  900 

Iddings  V.  Bruen  199,  428,  853 

Ide  V.  Pierce  82 

Idle  V.  Cook  312 

Iglehart  v.  Armiger  234,  238 

Igo  V.  Irvine  112 

Ihmsen's  Appeal  459,  460,  469 

lies  V.  Martin  770 

Ilminster  School,  In  re  733 

Imboden  v.  Atkinson  199 

Imlay  v.  Huntington         359,  365,  655, 

660 
Imperial  Mer.  Cred.  Ass'n  v.  Cole- 
man 207 
Inches  v.  Hill  920 
Inchiquin  v.  French  86,  93,  566 
Incledon  v.  Northcote  616,  633 
Incorporated  Society  v.  Price   724,  729 

V.  Richards  694,  733,  745 

Independence  Church  v.  Reorgan- 
ized Church  709 
Indiana,  &c.  R.  Co.  v.  Swannell      217, 
800,  828 
Indianapolis  v.  Grand  Master          705, 
710,  748 
Ingalls  V.  Ferguson                     149,  678 
Inge,  Ex  parte                                        743 

V.  Forrester  651 

IngersoU  v.  Cooper  330 

IngersoU's  Estate  448 

Ingham  v.  Burnoll  75 

Ingle  V.  Partridge       402,  443,  445,  827 

V.  Vaughan-Jenkins  347 

Ingleby,  &c.  Ins.  Co.,  In  re  340 

Inglefield  v.  Coghlan  648 


Inglis  V.  Sailors'  Snug  Harbor     46,  47, 
709,  722,  730,  731,  736,  748 


Inglish  V.  Johnson 
Ingraham  v.  Baldwin 

V.  Ingraham 

V.  Meade 

V.  Wheeler 
Ingham  v.  Kirkpatrick 


728,  731,  748 

33 

709,  736.  738 

251 

592 

900,  918 


Inloes  V.  American  Exchange  Bank  592 

In  re  Allen  918 

"    "  Baker  918 

"    "  Brewer  476  o 

"    "  Cavin  v.  Gleason  828 

"    "  Gerry  646 

"    "  Hawley  121 

"    "  Holland  275 

"    "  Jackson  918 

"    "  Jones  552 

"    "  Martyn  275 

"    "  Mason  918 

"    "  Nash  275 

"    "  Watson  275 

Inlow  V.  Christy  199 

Innis  V.  Flint  907,  915 

Insurance  Co.  v.  Smith  330 

V.  Waller  48,  51 


Interstate  Inv.  Co.  v.  Bailey 
Interstate  Nat.  Bank  v.  Claxton 


223 
122, 
828 
Inwood  V.  Twyne  476,  605,  915 

lona  Sav.  Bank  v.  Boynton  661 

lorr  V.  Hodges  311 

Iowa  &  Cal.  Land  Co.  v.  Hoag  70, 

71,  328,  878 


Ips.  Manuf.  Co.  v.  Story 

266,  440 

Irby  V.  Irby 

474 

Iredell  v.  Langston 

915 

Ireland  v.  Geraghty 

99,  732 

V.  Ireland 

672 

Irick  V.  Clement 

144 

Irish  V.  Antioch  College 

855 

Irnham  v.  Child 

76,  226 

Irvine  ?;.  Campbell 

232 

V.  Dunham 

275 

V.  Irvine 

33 

V.  Kirkpatrick 

173,  180 

V.  Robertson 

228 

V.  Sullivan 

112,  152 

Irving  V.  De  Kay 

894,  903  a 

V.  Irving 

476  a 

Irwin,  In  re 

312,  319,  357 

V.  Keen 

590,  600 

V.  Lloyd 

864 

V.  Rogers 

900 

V.  Teller 

570 

Irwin's  Appeal 

416 

Isaac  V.  Defriez 

256,  699 

V.  Gompertz 

718 

Isaacs,  In  re 

448 

V.  Weatherstone 

824 

Isabella  Denby,  In  re 

272 

Isham  V.  Delaware,  &c.  R.  R.  Co.   771 
V.  Post  225 

Isherwood  v.  Oldknow  529 

Isner  v.  Kelley  568 

Italian  Fruit,  etc.  Co.  v.  Penniman  828 
Ithell  V.  Beane  367,  795,  796 

Iverson  v.  Saulsbury    815  c,  820  a,  850 


INDEX    TO    CASES    CITED. 
[Referenced  are  tu  scctiooa.] 


XCIU 


Ives  1).  Allyn 

93 

Jackson  v.  Sackett 

866 

V.  Beecher 

815  o 

V.  Schauber 

308,  765 

D.  Davenport 

786  a 

V.  Sharp 

222 

V.  Harris 

655,  061 

V.  Sternberg 

126 

Ivory  V.  Burns 

77,  312 

V.  Strader 

202  b 

Ivy  V.  Gilbert 

681,  597 

V.  Sublett 

fi:i:i 

Izod  V.  Izod 

249,  255 

V.  \'on  Zedlitz 

96,  386  a.  671, 
816  a,  827  o 

V.  Welch 

196,  869 

J. 

V.  West 
V.  Williams 

660 
780 

Jack  V.  Nat.  Bank 

438, 926 

V.  Wiuslow 

222 

Jackman  v.  Deiafield 

500 

V.  Wood 

139 

V.  Hallock 

238 

V.  Woods 

126 

V.  Ringland 

126, 

134,  135 

V.  Woolly 

474 

Jacks  V.  The  State 

813  a 

Jackson's  Case 

828 

Jackson  v.  Bateman 

132 

Jackson  Sq.  Ass'n  v.  Bartlett 

386  a 

V.  Billinger 

380 

Jacksonville  Nat.  Bank  v.  Beesley    137 

V.  Blount 

602  d 

Jacob  V.  Lucas           414.  438, 

505,  848. 

V.  Bowen 

602  bb 

884 

V.  Brown 

754 

Jacobi  V.  Jacobi 

596 

V.  Burr 

765 

Jacobs  V.  Amyatt 

634, 

636,  649 

V.  Burtes 

499 

V.  Lake 

231 

V.  Cadwell 

162 

221,  299 

V.  Pou 

863 

V.  Calden 

602  2) 

V.  Ryland 

263 

V.  Gary 

299 

Jacoby  v.  Jacoby 

299 

V.  Cator 

226 

Jacoby's  Estate 

476  a 

V.  Clark             602  t, 

602 

u,  602  na 

Jacomb  v.  Harwood 

225 

V.  Cleveland 

1G2 

Jacot  V.  Corbett 

592 

V.  Cornell 

509 

V.  Emmett 

463,  468 

V.  Delancy 

336 

Jacques  v.  Hall 

81 

V.  Dunsbagh 

299 

Jagger  v.  Jagger 

394 

V.  Button 

165 

Jago  V.  Jago 

267 

V.  Everett 

252,  768 

Jail  V.  Mills 

248 

V.  Feller 

139,  144 

James,  Ex  parte 

197,  907 

V.  Ferris 

499 

James,  In  re 

484,  528 

V.  Fish 

298 

299,  312 

V.  Allen 

159 

711,  712 

V.  Forrest 

142 

V.  Aller 

828,  842 

V.  Garnsey 

162 

V.  Bird 

235 

V.  Given 

499 

V.  Cowing 

215 

V.  Hampton 

602/ 

V.  Dean 

195,  538 

V.  Hartwell 

42,  43,  44 

V.  Everly 

685 

V.  Haworth 

654 

V.  Frearson 

261, 

262,  267, 

V.  Hobhouse 

670 

419 

V.  Hurlack 

152 

V.  Gibbs 

602  cc 

627,  642 

V.  Hyde 

166 

V.  Greaves 

171 

V.  Jackson           136, 

371, 

606,  612, 

V.  Hauks 

448 

861,  918 

V.  Holmes 

127,  210 

V.  Jansen 

783,  785 

V.  James 

141.  195 

V.  Kraft 

132 

V.  Johnson 

347 

V.  Leek 

222 

V.  Kerr 

186 

189,  203 

V.  Lignon 

783 

V.  Mayrant 

661 

V.  Matsdorf 

126,  143 

V.  Morey 

347 

V.  Mills 

126 

V.  Morgan 

187 

V.  Moore        82,  83, 

130, 

133,  349, 

t'.  Smith 

206 

351 

James's  Appeal 

262 

v.  Morse 

126 

Jameson  v.  Shelly 

463.  468 

V.  Myers 

299 

V.  Smith 

308 

V.  Parker 

591 

Jamison  v.  Brady 

61,  277 

647,  648 

V.  PhiUips           690, 

694, 

697,  700, 

V.  Lindsay 

891 

701,  705, 

709, 

710,  715, 

Jane  v.  Kennedy 

768 

719,  724 

,  728 

,  729,  748 

Janes  v.  Falk 

96,  103 

V.  Pierce 

349 

V.  Throckmorton 

863 

V.  Pool 

815  h 

Jaiiey  v.  Latane 

748 

V.  Potters 

500 

Jansen  v.  Ostrander 

43 

V.  Robins 

315 

January  v.  Poyntz 

468 

V.  Root 

299 

Jaques  v.  Marquand 

846 

V.  Rowe 

219 

V.  Methodist  Church 

667 

XCIV 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Jarman  v.  Farley  815  c 

Jarmon  v.  Wilkinson  660 

Jarnagan  v.  Conway  254 

Jarrett  v.  Johnson  427,  432,  919 

Jarvis  v.  Duke  171 

V.  Prentice  648 

Jasper  v.  Howard  651 

Jastram  v.  McAuslan  386 

Jaudon  v.  National  City  Bank  814 

Jay  V.  Long  Island  R.  R.  684 

Jaycox  V.  Smith  223 

Jeaffrcson's  Trusts,  In  re  256 

Jeans,  In  re  251,  371 

V.  Cooke  147 

Jecko  V.  Lansing  251 

Jee  V.  Audley  385 

V.  Thurlow  372 

Jefferies  v.  Harrison  892 

Jefferson  v.  Tyrer  498 

Jeffersonville  Assoc,  v.  Fisher         602  v 

Jefferys  v.  Jefferys      97,  107,  108,  111, 

162,  367 

V.  Marshall  900 

Jeffray  v.  Towar         122,  225,  800,  828 

Jeffreys  v.  Small  136 

Jeffries  v.  Lawson  426 

Jemmit  v.  Verrel  705,  712 

Jenckes  v.  Cook  215 

Jencks  v.  Alexander  142,  144,  149, 

602  I,  602  o,  602  g,  602  s, 

602  a; 

Jenison  v.  Groves  126,  137 

Jenkins,  Ex  parte  17 

In  re  639,  642 

V.  Baker  82 

V.  Berry  732,  742 

V.  Doolittle  468 

V.  Eldredge  81,  173,  181,  206, 

226,  918 

V.  Fickling  432 

V.  Frink  126,  127,  129 

V.  Guarantee  Tr.,  &c.  Co.  72 

V.  Hammerschlag  274 

V.  Hiles  597,  802 

V.  Jenkins  314 

V.  Jenkins  Uni.  158 

V.  Jensen  858 

V.  Jones  782,  816 

V.  Lester  70 

V.  Milford  329 

V.  Pye  188.  201 

V.  Robertson  260,  847,  876 

V.  Row  761 

V.  Walter  463 

V.  Whyte  918,  919 

Jenks  V.  Backhouse  343 

Jenner  v.  Hooper  739 

Jenness  v.  Howard  191 

Jenney  v.  Mackintosh  72 

Jennings  v.  Broughton  230 

V.  Davis  262,  639,  678 

V.  Moore  217 

V.  Selleck  144,  151 

V.  Shacklett  138,  141 

Jennison  v.  Hapgood  195,  205 

Jenny  v.  Gray  676,  678,  681 

Jenour  v.  Jenour  903  a 

Jentzsch  v.  Jentzsch  144 


Jernegan  v.  Baxter 
Jerome  v.  Bohm 
Jerrard  v.  Saunders 
Jervis  v.  Wolferstan 
Jervoise  v.  Duke 


630 

171,  181 

218 

485,  910,  932 

511,  515 


V.  Northumberland   357,  359,  3G0, 

366,  372,  390 

V.  Silk  614,  615 

Jesse  V.  Barnett  884 

Jesser  v.  Armentrout  127,  144 

Jessup  V.  Hulse  590 

Jesus'  College  v.  Bloom  871 

Jesus'  College  Case  700 

Jevon  V.  Bush  17,  54,  482 

Jewell  V.  Jewell's  Estate  863 

Jewett,  Ex  parte  610 

V.  Davis  685 

V.  Iowa  Land  Co.  223 

V.  Miller  195,  205 

V.  Palmer  221 

V.  Tucker  873 

V.  Woodward  596,  894,  918 

Jewson  V.  Moulson    239,  629,  632,  633, 

636,  641 

Jobson,  In  re  618,  619 

V.  Palmer  441 

Jochumsen  v.  Suff.  Sav.  Bank  929 

Jodrell  V.  Jodrell         32,  118,  185,  620, 

672 

Joel  V.  Mills  248,  388,  555 

Joerger  v.  Joerger  139 

John  V.  Battle  127 

V.  Bennett  197 

V.  Smith  700,  709,  731 

John's  Will,  In  re       694,  729,  736,  748 

John  V.  Farwell  Co.  v.  Sweetzer       242 

Johnes  v.  Lockhart  648,  649 

Johns  V.  Herbert  70,  195,  466,  764 

V.  James  593 

V.  Johns  764,  766 

V.  Sergeant  779 

V.  Smith  610 

Johnson,  Ex  parte  457 

In  re  96,  388,  454,  555, 

815  a.  815  b 

Matter  of  547,  918 

V.  Amberson  96,  103 

V.  Aston  826 

V.  Ball  93 

V.  Barber  427 

V.  Beattie  603 

V.  Bennett  195,  205 

?).  Billups  117 

V.  Blackman  195 

V.  Bridgewater  Co.  545,  556 

V.  Buck  764 

V.  Calnan  225 

V.  Cary  301 

V.  Cawthorn  239 

V.  Chisson  686 

V.  Clark  602  d 

V.  Clarkson  93,  160,  715 

V.  Currin  380 

V.  Deloney  82 

V.  De  Pauw  Univ.  710 

V.  Dorsey  602  s,  782 

V.  Dougherty  126,  137 

V.  Dumeyer  790 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


xcv 


Johnson  r.  Eason  602  o,  602  q,  602  u, 

602  X,  602  ee 

V.  Fesemeyer  202 

V.  Freeth  671 

V.  Gallagher  658,  659,  663 

V.  Giles  166 

V.  Glasscock  182 

V.  Harvey  591 

ti.  Hayward  206 

V.  Henry  602  ee 

t.  Humphrey  863 

T.  Johnson  144,  159,  160,  200, 

225,  252,  299,  421,  449, 

540,  544,  545,  639,  641, 

729,  748,  851,  921 

V.  Kay  205 

V.  Kelly  160 

V.  Kennett  597,  795,  796,  801, 

802 
V.  Knappe  206 

V.  Krassin  126,  226 

V.  Lawrence  918 

V.  Lee  305 

V.  Leman  437  a,  486,  815  b,  907 
V.  Lewis  847 

V.  Longmire  748 

V.  Ludwick  144 

V.  Malcomb  585 

V.  Matsdorf  146,  147 

V.  Mayne  748 

V.  Medlicott  191 

V.  Milksopp  564 

V.  Miller  471 

V.  Moore  551 

V.  Newton  443,  446,  462,  463 

V.  Prairie  860 

I'.  Prendergast  462 

V.  Preston  386 

V.  Quarles  126,  139 

V.  Richardson  137 

ti.  Riehey  847 

V.  Roland  259 

V.  Ronald  79 

V.  Rowlands  112 

V.  Runyan  677 

V.  Simpson  275 

V.  Sirmans  815  c 

V.  Smith  34,  855,  863 

V.  St.  Louis  71 

V.  Stanton  511  c 

V.  Swire  845 

V.  Telford  910 

V.  Thweatt  590 

V.  Turner  602  s.  602  bb 

V.  Univ.  Trustees  748 

V.  Vail  678 

V.  Ward  122 

V.  Webster  347,  348 

V.  Williams  602  ?/,  602  ee 

Johnson's  Appeal      195,  262,  459,  538, 

817 

Johnson's  Estate,  In  re  383 

Johnson's  Trustee  v.  Johnson  377, 

391,  392 

Johnston,  In  re  373 

V.  Eason  771,  787 

V.  Hughes  42,  715,  729 

V.  Jickling  82,  322 


Johnston  v.  Johnston         679,  863,  864 

D.  Knight  511c 

V.  Rcilly  172 

V.  Spicer  122 

V.  Swan  704,  705,  712 

V.  Todd  903  a 

Johnstone  v.  Baker  773 

V.  Lumb  668 

Joice  V.  Taylor  171 

Joiner  v.  Duncan  223 

Joliffe,  Ex  parte  929 

V.  East  903  a 

V.  Jolland  432 

Jollands  v.  Burdett  670,  671 

Jones,  In  re  280,  401,  929 

V.  Atchison  &c.  R.  Co  766 

I'.  Beckman  133 

V.  Bradley  167 

V.  Bush  301 

V.  Chesebrough  828 

V.  Clifton  96,  104,  262,  254 

V.  Cole  330 

V.  Davis  237 

V.  Dawson        552,  564,  602  v,  910, 

913 
V.  Dexter  429,  430 

V.  Dougherty  275,  818 

V.  Downs  70 

V.  Elkins  127,  132 

V.  Foote  257 

V.  Foxall  468,  470.  471 

V.  Fulghum  276  a 

V.  Geddes  72 

V.  Gibbons  438,  633 

V.  Godwin  860 

V.  Goodchild  157,  434 

V.  Graham  129 

V.  Greatwood  117 

V.  Green  729,  748 

V.  Habersham  42,  741 

V.  Harris  669,  662 

V.  Henderson  863 

V.  Higgins  365,  849 

V.  Holladay  764,  800 

V.  Home  S.  Bank  863,  864 

V.  Hughey  133 

V.  Jones        96,  103,  127,  144,  171, 
181,  218,  275,  281.  282, 
330,  358,  511,  580,  647, 
655,  668,  766,  876 
V.  Kearney  170,  196 

V.  Kelly  448 

V.  Langton  361 

V.  Lewis      407,  441,  443,  457,  520, 
900,  901,  914 
V.  Lock  97,  99 

V.  Lord  Saye  and  Seale     301,  305. 
308.  310 
V.  Llovd  82,  195,  851 

V.  Maggs  397,  584 

V.  McKee  181 

V.  McPhillipa  275 

V.  Miller  380 

V.  Mitchell  160 

V.  Morgan  347,  358,  359 

V.  Morley  108 

V.  Morrall  468 

V.  Nabbe  86 


XCVl 


Jones  r.  Neale 
V.  Obincham 

r.  Ogle 
V.  Parsons 
V.  Powell 
V.  Powles 
V.  Price 
V.  Reeder 
V.  Rees 
V.  Reese 
V.  Ricketts 
V.  Roberts 
V.  Rush 
V.  Salter 
V.  Scott 
V.  Selby 
V.  Seligman 
V.  Shaddock 
V.  Sherrard 
V.  Slaughter 
V.  Slubey 
V.  Smith 
V.  Stanley 
V.  Stockett 

V.  Strong 
t'.  Suffolk 
V.  Torin 
V.  Tripp 
V.  Tucker 
V.  Turberville 
V.  Ward 
V.  Waste 
V.  Watford 
V.  Whitebread 
V.  Williams 
V.  Wilson 
V.  Winwood 
V.  Zollicofifer 
Jones's  Appeal 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Jones's  Case 
Joor  V.  Hodges 

V.  Williams 
Joralemon  v.  Van  Riper 
Jordan,  Ex  parte 

V.  Cheney 

V.  Holkam 

V.  Hudson 

V.  Jordan 


602  2 

95,  100,  103,  109, 

240 

556 

863 

474,  538,  913 

218,  219 

492,  505,  597,  795 

212 

358 

386  a 

188 

203 

237 

652,  653,  671 

658,  559,  001 

569 

762 

217,  334,  828 

554 

133 

82,  85 

428,  814 

421 

268,  274,  280,  901, 

918 

330 

518 

248,  250,  251 

209 

511  c 

866 

468 

672 

700,  731 

591 

697,  704,  724,  814 

82,  83 

784 

218 

404,  415,  416,  417, 

418,  420,  421,  501 

918 


V.  Money 

V.  Phillips 

V.  Richmond  Home 

V.  Roach 

V.  Universalist  Trustees 
Jorden  v.  Morey 
Jordon  v.  Hunt 
Jortin,  Ex  parte 
Josling  V.  Karr 
Joslyn  V.  Downing 
Josselyn  v.  Josselyn 
Jourolmon  v.  Massengill 

Jowitt  V.  Lewis 
Joy,  Re 


303 
610,  828 
264,  700 

449 
243,  828 

516 

238 

477,  548,  550,  552, 

575,  843 


208 

279 

729,  748 

380,  392 

729 

870 

468 

725 

881 

815  c 

615 

312,  386  a, 

815  a 

754 

705 

V.  Campbell  404, 419,  421,  828,  837 


Joy  ».  J.  &  M.  Plank  R.  Co.  754 

Joyce  V.  Gunnels  282,  540 

V.  Hutton  108 

V.  Joyce  277,  287 

Joyner  v.  Conyers  810 

Jubber  v.  Jubber  112,  117,  620 

Judah  V.  Judd  438 

Judd  V.  Dike  468 

V.  Haseley  137 

V.  Moseley  226 

Judge  V.  Booze  780 

V.  Jackson  918 

V.  Mathes  453 

V.  Pfaff  764 

V.  Wilkins  187 

Judice  V.  Prevost  264 

Judkin's  Trusts,  In  re                        616 

Judson  V.  Corcoran  438 

V.  Gibbons  259,  261,  262,  270 

V.  National  City  Bank  225 

Juler  V.  Juler  94 

Julian  V.  Reynolds  195,  205 

Junction  Railw.  v.  Ruggles       754,  758 

Justices  V.  Haygood  891 

Justin  V.  Wynne  829 

Juvenal  v.  Jackson  221 

Juzan  V.  Toulmin  175,  187,  230 


K. 


Kahn  v.  Chapin 
V.  Gunherts 
Kalbach  v.  Clark 
Kalish  V.  Kalish 
Kampf  V.  Jones 
Kane,  In  re 

V.  Bloodgood 
T.  Kane 


195,  864,  869 

212 

545 

99 

380,  390 

556,  612 

228,  855,  863,  864 

429,  468,  471 


Kane  County  v.  Herrington  227,  246  a 
Kansas  State  Bank  v.  First  Nat. 

Bank  828 

Kantrowitz  v.  Prater  680 

Karr  v.  Karr  471,  472 

V.  Washburn  76 

Kasey  v.  Fidelity  Tr.  Co.         381,  729, 

748 
Kates  V.  Burton  507 

Kator  V.  Pembroke  828 

Kauffelt  V.  Bower  232 

Kauffman  v.  Kries  112 

Kaufman  v.  Crawford      458,  607,  836, 

842 
Kavanagh,  In  re  460 

Kay  V.  Crook  208 

V.  Scates  299 

V.  Smith  851 

Kaye,  In  re  51,  275 

V.  Powell  549 

Kaylor  v.  HUler  328,  330 

Kayser  v.  Maughan  166,  226 

Keady  v.  White  122 

Kean  v.  Kean  386 

Keane  v.  Robarts      246,  403,  789,  809, 
810,  811,  907 
Kearnan  v.  Fitzsimon  260 

Kearney  v.  Cruikshank  556 

V.  Kearney  476  a,  540 


INDEX   TO   CASES   CITED. 
[Refereocea  are  to  aectiona.] 


XCVll 


Kearsley  v.  Woodcock  386  b,  388,  555 

Keates  v.  Burton  608,  510 

t.  Cadogan  173,  179 

Keating  v.  Keating  769 

V.  Stevenson  815  6 

Keaton  v.  Cobb  132,  144 

V.  Greenwood  863 

V.  McUwier  864 

V.  Scott  680 

Kebble.  Ex  parte  616,  619 

Keble  v.  Thompson  419,  453 

Keek's  Settlement,  In  re  477 

Kedian  v.  Hoyt  437  a 

Kee  V.  Kee  918 

V.  Vasser  664 

Keech  v.  Sanford  196,  538 

Keefer  v.  Schwartz  511  c 

Keeler  v.  Eastman  640 

V.  Keeler  894 

V.  Lauer  392,  511 

Keely  v.  Gregg  126,  131 

Keen  v.  Walbank  315 

Keene  v.  Deardon  305.  307,  309, 

315,  349,  353,  354 

V.  Eastman  728 

Keene's  Appeal  282 

Keeney  v.  Morse  72,  386  a 

Keep  V.  Sanderson  590 

Keffer  v.  Grayson  95 

Kegerreis  v.  Lutz  144 

Keily  v.  Fowler  379 

V.  Keily  511  a 

V.  Monck  515 

Keim  v.  Lindley  408,  409,  779 

Keim's  Estate  448 

Keisselbrock  v.  Livingston  226 

Keister  v.  Scott  790,  794 

Keith  V.  Copeland  550 

V.  Horner  238 

V.  MUler  91,  137 

V.  Scales  46,  694,  713,  729, 

730,  731,  748 

V.  Wheeler  347 

Kekewich  v.  Manning  68,  98,  101, 

102,  104,  105,  111,  438 

Kellaway  v.  Johnson  460,  467,  509, 

847,  849 

Keller  c.  Auble  211 

11.  Fenske  195,  431 

V.  Nutz  241 

V.  Ruiz  680 

V.  Strong  79 

Kellett  V.  Kellett  151 

V.  Rathbun  463,  46S 

Kelley  v.  Babcock  82.  594 

V.  Boettcher  855 

V.  Jenness          126,  130,  132,  246  a 

V.  Parker  97,  104 

V.  Snow                97,  104,  213,  476  a 

Kellogg.  Matter  of  248 

V.  Carrico  774 

V.  Church  Charity  Foundation  747 

r.  Hale  300 

V.  Peddicord  82 

V.  Slausou  590 

V.  Wood  126 

Kellogg's  Case  918 

Kellum  V.  Smith  216 

VOL.  I.  —  a 


Kelly  V.  Drew 

678 

V.  Johnson 

126,  133 

V.  Karsner 

76,  143 

V.  Lank 

591 

V.  McNeill 

75,76 

V.  Nichols 

93,  169,  706,  712 

V.  Richardson 

660 

V.  Scott 

336 

Kelsal  V.  Bennett 

219 

Kelsey  v.  Snyder 

139 

V.  Western 

S62 

Kelso  V.  Tabor 

660 

Kemmerer  v.  Kemmerer  699,  728, 

729,  748 

Kemmis  v.  Kemmia  616 

Kemp  V.  Burn  900 

V.  Burr  821 

V.  Kemp  8,  251,  507,  511,  570 

V.  McPherson  576,  796 

Kempf  V.  James  888 

Kempton  v.  Packman  190 

Kenaday  v.  Edwards  504,  770 

Kenan  v.  Hall  471 

V.  Paul  918 

Kendall  v.  Gleason  920 

V.  Granger  159.  711 

V.  Mann  126,  133 

V.  Micfcild  13 

V.  New  England,  Ac.  918 

Kenc  V.  Hill  386  a,  815  a,  827  a 

Kenge  v.  Deluvall  662 

Keuiston  v.  Garrell  540,  546 

V.  Mayhew  82 

Kennard  v.  Bernard  282.  503 

Kennedy  v.  Alexander  252 

V.  Baker  127,  828,  865 

V.  Brady  918 

V.  Colclough  358 

V.  Daley              122,  216,  433,  828, 

830,  863 

V.  Dickey  919 

V.  Fury  17,  328 

V.  Hammond  602  ff 

V.  Hoy  99 

V.  Keating  129,  135 

V.  Kennedy  189,  226,  865 

V.  Kingston  251,  255 

V.  Strong  463 

V.  Turnley  293 

V.  Ware  109,  111 

V.  Winn  259,  261,  863 

Kennedy's  Appeal  912 

Kennell  v.  Abbott  182 

Kenney  v.  Altvater  223 

V.  Udall  631,  632,  636 

Kenney  C^o.,  In  re  328 

Kenrick  v.  Beauclerk  305,  308 

Kensington  v.  Bouverie  554 

V.  Dolland  647,  649,  651 

Kenson's  Case  739 

Kent,  Et  parte  617 

V.  Chalfant  197 

V.  Dunham  710 

V.  Gerhard  232 

V.  Hutchins  900 

V.  Jackson  870 

V.  Kent  511  c 

V.  MehaEfey  227 


XCVUl 


INDEX   TO    CASES    CITED. 

[References  are  to  sections.] 


Kent  V.  Morrison 

252,  768 

Kilvington  v.  Gray 

550 

V.  Plumb 

467,  670 

Kimball  ».  Blanchard 

510, 

511,  920 

Kentish  v.  Kentish 

569 

V.  Ives 

863 

V.  Newman 

364 

V.  Johnson 

396, 

398,  738 

Kenyon  v.  Kenyon 

324 

V.  Morton 

86 

Ken  worthy  v.  Equitable 

Tr.  Co.     195,  1 

V.  Reading 

440, 

459,  465 

225 

V.  Tripp 

171,  181 

Keogh,  In  re 

550 

V.  Universalist  Society  in 

Sweden 

V.  Cathcart 

654 

748 

Keon  V.  Magawley 

787,  874 

Kime  v.  Welpitt 

610 

Kep  V.  Bank  of  New  York 

58 

Kimm  v.  Weippert 

680 

Kepler  v.  Larson 

358 

Kimmel  v.  McRight 

144,  149 

Ker  V.  Buxton 

624,  672 

V.  Smith 

171 

V.  Snead 

471 

Kinard  v.  Hiers 

25,  215 

Kerlin  v.  Campbell 

151,  158 

Kincaird's  Trust,  In  re 

633,  636 

Kern  v.  Hazlerigg 

238 

Kincell  v.  Feldman 

226 

V.  Kern 

195 

Kinch  V.  Ward 

297 

Kernochan,  Matter  of 

544 

Kinchant  v.  Kinchant 

201 

Kerr  v.  Day 

38,  231 

Kinder  v.  Miller 

137 

V.  Dungannon 

195, 

206,  380 

V.  Shaw 

243 

V.  Kirkpatrick 

421 

King.  Re 

901,  902 

V.  Laird 

463 

V.  Akerman 

312 

V.  Verner 

248,  473 

V.  Bellord 

19,  52 

V.  Water 

421 

V.  Boston 

135 

Kerrigan  v.  Conelly 

730 

V.  Bushnel 

322 

V.  Rautigan 

82 

V.  Carmichael 

866 

V.  Tabb 

715 

V.  Coggan 

434  o 

Kerrison  v.  Stewart 

873 

V.  Cotton 

213 

Kershaw  v.  Snowden 

122 

V.  Cushman 

129 

428,  915 

Kessner  v.  Phillips 

386,  386  a 

V.  Denison              54 

151 

152,  153 

Ketchum,  In  re 

846 

V.  Donnelly          138 

240 

259,  280 

V.  Ketchum 

891 

V.  Duntz 

602 

X,  602  aa 

V.  Mobile  &  Ohio  R 

Co. 

275 

V.  Eggington 

837 

Ketrick  v.  Barnsly 

<     182 

V.  Hake 

580 

Kettle  V.  Hammond 

587 

V.  Hamlet 

188 

Kettleby  v.  Atwood 

367 

V.  Holland 

64 

Kevan  v.  Branch 

591.  592 

V.  Jenkins 

17 

Key  V.  Hughes 

441,  463 

V.  King         386  a,  386  b. 

441,  898, 

Keyes  v.  Carleton 

104 

914 

V.  Northern  Trust  Co. 

99,  392 

V.  Lawrence 

264,  343 

V.  Wood 

602  n 

V.  Leach 

343 

Keyser's  Appeal 

304 

V.  Merchants'  Exchange  Co.    299, 

Kiah  V.  Grenier 

371,  391 

602  1 

Kibbee  v.  Hamilton  Ins. 

Co. 

172 

V.  Mildmay 

325 

Kibbett  v.  Lee 

5116 

V.  Miller 

540 

Kidder's  Ex'r  v.  Kidder 

117 

V.  Mitchell 

153 

Kiddill  V.  Farnell 

100,  929 

V.  Morrison 

927 

Kidney  v.  Coussmaker 

556,  570, 

V.  Mullins 

922 

867,  872 

V.  Pardee 

141 

Kightley  v.  Kightley 

569 

V.  Parker              312 

320 

705,  737 

Kilbee  v.  Sneyd         402, 

403, 

422,  424, 

V.  Phillips 

269 

445 

851,  914 

V.  Remington 

195 

Kilbourn  t.  Sunderland 

861 

V.  Roe 

474 

Kildare  v.  Eustace 

40.  71 

V.  Rundle 

748 

Kilford  V.  Blaney 

567 

V.  Savery 

201,  202 

Kilgore,  Ex  parte 

261 

V.  Stone 

411 

Killam  v.  Allen 

313 

393,  398 

V.  Strong 

903  a 

Killar  v.  Beclor 

639 

V.  St.  Catharine's  Hall 

743 

Killeran  v.  Brown 

226 

V.  Talbott           441, 

454, 

455,  459, 

Killett  V.  Killett 

151 

,  152,  154 

460,  468 

Killick,  Ex  parte 

648 

V.  Taylor 

903  a 

V.  Flexney 

196.  538 

V.  Townshend 

351 

Kilpatrick  v.  Johnson 

396 

398,  738 

V.  Whitely 

367 

V.  Kilpatrick 

239 

V.  Whiton 

769 

Kilpin  V.  Kilpin               75,  77 

,  86,  144. 

V.  Wilson 

434,  696 

146,  147 

V.  Wise 

209 

Kilroy  v.  Wood 

815  a 

V.  Woodhull 

160 

,  272.  748 

Kilvert's  Trusts,  In  re 

714 

King's  Mortgage 

338 

INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


XCIX 


King-Harman  v.  Cayley  612,  614 

Kingdom  v.  Bridgee  144,  146 

Kingdon,  In  re  511  6 

Kiiifiham  v.  Lee  49,  121 

Kiiigland  i'.  Rapelye  359 

Kingman  v.  Cornell -Tebbetts  Co.     593 

Kingsbury  v.  Burnside  82 

V.  Powers  200,  603 

Kingston  v.  Lorton  112,  855 

Kinmonth  v.  Brigham       450,  545,  546, 

547,  548 

Kinnard  v.  Kinnard  541 

V.  Thompson  593 

Kinnc  v.  Webb  213 

Kinner  v.  Walsh  680 

Kinney  v.  Ensminger  237 

V.  Harvey  238 

Kinney  v.  Heatley  918 

Kinsey  v.  State  612 

Kinsler  v.  Clark  299 

Kinsley  v.  Ames  602  bb 

V.  Boyd  136 

Kintzinger  Estate  639 

Kinzie  v.  Penrose  84 

Kip  V.  Bank  of  New  York  463 

V.  Deniston  416,  420 

Kiracofe  v.  Kiracofe  655,  668 

Kirby  v.  Boyette  655,  671 

V.  Masly  900 

V.  Schoonmaker  599 

V.  Taylor  851 

V.  Vantroce  324 

Kiricke  v.  Bransbey  152 

Kirk  V.  Clark  874,  878 

V.  McCann  398 

V.  Paulin  310,  648 

V.  Webb  137,  841 

Kirkbank  v.  Hudson  700 

Kirkham  v.  Smith  348 

Kirkland  v.  Cox        312,  315,  320,  328, 

520 
V.  Narramore  272 

Kirkman  v.  Booth      433,  454,  877,  904 
V.  Holland  299,  305 

V.  Wadsworth  269,  341,  511  c 

Kirkpatrick  v.  Beauford  678 

V.  Davidson  86,  126 

V.  McDonald  77,  98,  127,  133, 

330 
V.  Rogers  570 

Kirsch  v.  Tozier  223,  800 

Kirwan  v.  Daniels  593 

Kirwan's  Trusts,  In  re   248,  254,  511  o 
Kirwin  v.  Wcippert  655 

Kirwood  !'.  Thompson  199 

Kislor  V.  Kisler  126,  127,  134,  215 

Kissam  v.  Anderson  122 

V.  Dierkes  602  g,  784 

V.  Edmundson  591 

Kitchen  v.  Bradford  828 

Kittlcby  V.  Lamb  928 

Kittrcdge  v.  Fulsome  93 

Klamp  i;.  Klamp  144 

Klapp  V.  Shurk  591,  593 

Kleberg  v.  Bond  456 

Kloinclaus  v.  Dutard  862,  864,  865 

Kleiser  v.  Scott  238 

Klepner  v.  Laverty  371 


Kline's  Appeal 
Kline's  Estate 
Kluck  V.  Cronkhite 
Klumpert  v.  Vrieland 


127,  144 

213 

602  s 

694,  729,  731, 

741,  748 

Knapp  V.  Noyes  513 

V.  Smith  678,  686 

Knatchbull  v.  Fearnhead  846,  848, 

877,  924 

Kneeling  v.  Brown  569 

Kncfler  v.  Shreve  815  a 

Knight  V.  Boughton  112,  114,  116 

V.  Bowj-er  745,  850,  863 

V.  Brawncer  639 

V.  C'anicron  514 

V.  Carborough  254 

V.  Haynie  415 

V.  Hunt  212 

V.  Knight  114,  116,  237,  653, 

654,  828 

V.  Leak  633 

V.  Leary  126 

V.  Loomis  262,  264,  500 

V.  Majoribanks  199 

V.  Martin  476  a,  901,  922,  928 

V.  Packer  590 

V.  Plymouth        406,  457,  465,  914 

V.  Robinson  338 

V.  Selby  357 

V.  Whitehead  667 

Knight's  Trust  927 

Kniskcrn  v.  Lutheran  Churches      733, 

748 

Knorr  v.  Raymond  858 

Knott,  Ex  parte  218,  618 

V.  Cottee  115,  116,  461.  468, 

471,  472,  898,  902,  907 

V.  Hill  188 

Knottman  v.  Peyton  213 

KnoufT  V.  Thompson  143,  149 

Knowles,  In  re  580 

V.  Knowles  891 

V.  McCamley  660 

V.  Spcuce  855 

Knowlton  v.  Atkins  82 

V.  Brady  453,  468 

Knox  V.  Bigelow  891 

V.  Hotham  119 

V.  Jenks  302 

V.  Jones  382,  391 

V.  Knox  112 

V.  McFarran     75,  77,  82,  133,  137 

V.  Pickett  421,  891 

Knox's  Trusts,  In  re  900 

KnuckoUs  v.  Lea  175 

Knust,  Ex  parte  240,  282 

Knyc  V.  Moore  438,  877,  878 

Kobarg  v.  Greeder  144 

Koch  V.  Roth  232,  239 

V.  Streuter  86,  95 

Kocher  v.  Cornell  661 

Kocbcr  V.  Sturgis  634 

Koefoed  v.  Thompson  171,  181 

Koenig's  Appeal  304,  312 

Kofoed  V.  Gordon  202 

Kokcn  Iron  Works  v.  Kinealy        437  a 

Kopp  V.  Gunther  91 

Korn  V.  Friz  568 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Korns  v.  Shaffer  195,  199,  602  v 

Kountz  V.  Kirkpatrick  831 

Kountze  v.  Kennedy  177 

Kountz's  Estate  380,  381,  392 

Koyer  v.  Willmon  206 

Kraemer  v.  Dustermann  206 

Kraft  V.  Lohman  275 

V.  Neuffer  97,  104 

Kraken  v.  Shields  456 

Kramer  v.  Arthur  218 

Krankel  v.  Krankel  104 

Kreb's  Estate  305 

Kreider  v.  Boyer  640 

Kreitz  v.  Frost  892 

Kreps  V.  Kreps  142 

Kronshage  v.  Varrell  694,  729,  748 

Kronson  v.  Lipschitz  347 

Krumbaar  v.  Burt  639,  641 

Krupp  V.  Scholl  213,  641 

Kruse  v.  Stephens  205 

Kuhn  V.  Newman  299 

Kuntzleman's  Trust  Estate  310  a,  358, 

652 
Kupferman  v.  McGehee  815  o,  815  bb 
Kuster  v.  Howe  344 

Kutz's  Appeal  863 

Kyle  V.  Barnett  454,  464,  470,  471 

V.  Tait  221,  236,  237 


Lacey,  Ex  parte  195,  197,  209,  285,  428 
V.  Collins  570 

V.  Floyd  358 

V.  Hall  538 

Lachlan  v.  Reynolds  380 

Lackawanna  Co.,  In  re  556 

Lackey's  Estate  448 

Lacon  v.  Lacon  862 

Lacy  V.  Wilson  218,  222 

Ladbroke,  Ex  parte  780 

Ladbrook  v.  Bleaden  271 

Ladd  V.  Chase  511  c 

r.  Ladd  413,5116 

Laddington  v.  Kine  379 

Lade  v.  Holford  349,  350,  355,  395 

V.  Lade  126 

Ladnier  v.  Stewart  223 

Lady  Mice's  Charity  724 

Lady  Wellesley  v.  Earl  of  Morning- 
ton  511  o 
Lafferty  v.  Farley  863 
La  Forge  v.  Binns     273,  275.  277,  286, 

297 

Lagarde  v.  Anniston  Co.  206,  207 

Lagow  V.  Badollet  232,  237,  238 

Lahey  v.  Broderick  147 

V.  Kortright  493,  500,  503 

Laidlaw  v.  Organ  171,  180 

Lain  v.  Morton  221,  223 

Laing  v.  Evans  149 

Laing's  Settlement,  In  re  453 

Laird  v.  Vila  171.  181 

Lajoye  v.  Primm  929 

Lake  v.  Currie  511  c 

V.  De  Lambert         48,  51,  54,  275, 

282 


Lake  v.  Freer 

82 

V.  Gibson 

132,  136 

V.  Lake 

150 

Lakin  v.  S.  B.  M.  Co. 

231 

Lallance  v.  Fisher 

786 

Lamar  v.  Micon 

452 

V.  Pearre 

856 

V.  Simpson 

62 

Lamas  v.  Bayley 

135 

Lamb  v.  Cain 

733 

V.  Davenport 

231 

V.  Goodwin 

602  dd 

V.  Lamb 

181.  551 

V.  Rooney 

128.  828 

Lamb's  Appeal 

464.  466 

Lambe  v.  Orton 

101.  102,  105 

Lambert  v.  Morgan 

438.  448,  926 

V.  Parker 

616,  619 

V.  Thwaites 

250,  258 

V.  Youmans 

864 

Lambeth  Charities,  In  re  699 

Lamerson  v.  Morvin  602  y 

Lammer  v.  Stoddard  860 

L'Amoureux  v.  Crosby  35 

V.  Van  Rensselaer  526,  660 

Lamp  V.  Homestead  B'ld'g  Ass'n     275 
Lampert  v.  Haydel  386  a 

Lampet's  Case  68 

Lamphear  v.  Buckingham  762 

Lampley  v.  Watson   647,  666,  677,  684 
Lamplugh  v.  Lamplugh      54,  143,  144, 

146 

Lanahan  v.  Latrobe  596 

Lanan  v.  Van  Ness  82 

Lancashire  v.  Lancashire  273,  493 

Lancaster  Charities  278 

Lancaster  v.  Dolan        310  a,  652.  655. 

661,  768 

V.  Elce  593,  600 

V.  Evors  431 

V.  Thornton  308 

Lancaster  Trust  Co.  v.  Long  171 

Land  Credit  Co.  v.  Fermoy      207,  875 

Landen  v.  Green  894 

Lander  v.  Weston  808 

Landis  v.  Saxton  128,  865 

Landon  v.  Hutton  95,  96 

Landram  v.  Jordan  99,  377 

Lane,  In  re  618 

V.  Colman  918 

V.  Debenham     294,  340,  414.  493. 

494,  505 

V.  Dighton  139,  835,  837,  839, 

842 

V.  Eaton  729.  730.  748 

V.  Ewing  79.  98.  100.  163 

V.  Lane  112.  134,  511  b 

V.  Page  511  a 

V.  Tidhall  602  o.  602  x.  602  ee 

Lane's  Appeal  468 

Lanesborough  v.  Fox  380 

V.  Kilmaine  219 

Lang  V.  Ropke  398 

Lang's  Ex'r  v.  Lang  544,  545 

Langdale's  Settlement  Trust,  In  re  460 

Langdon  v.  Astor  93 

V.  Simson  381,  395 

Langford  v.  Auger  336 


ESTDEX   TO    CASES    CITED. 
(References  are  to  sections. | 


a 


Langford  v.  Gaacoyne      402,  404,  419, 

444,  407,  S49 

V.  Mahoney  9U8,  910 

Langham  v.  Sandford  94,  150,  157 

Langley  v.  Brown  226 

V.  Fisher  433.  863 

V.  Hawk  818 

V.  Sneyd  351,  354 

Langmcad'a  Trusts  795 

Langsdale  v.  Woollen  76 

Langstaff  v.  Taylor  203 

Langston  v.  Olivant  329,  417,  453, 

460,  539 

Langton  v.  Astrey  828,  829 

V.  Brackenburgh  614 

V.  Horton  68 

Langworthy  v.  Chadwick  541 

Lanier  v.  Brunson  918 

Lanning  v.  Com'rs  275 

V.  Lanning  585 

Lanoy  v.  Athol  577,  6.1.3,  614,  635 

Lansdownc  v.  Lansdowne  134,  871 

Lansing  v.  Lansing  262 

Lanterman  v.  Abernathy  97 

Lantry  v.  Lantry  134 

Lantsbury  v.  Collier  498 

Lape  V.  Taylor  900,  901,  910 

Laprimaudaye  v.  Teissier  644 

Larco  v.  Casaneuava  198 

Larey  v.  Baker  202  b 

Large's  Case  388,  555 

Largey  v.  Leggat  206 

Larkin  v.  Mason  576 

V.  Wikoff  248,  728 

Larkins  v.  Biddle  184 

V.  Rhoades  132,  137 

Larmon  v.  Knight  171,  181 

Larod  v.  Douglass  418 

Larrabee  v.  Hascall  82 

Larrow  v.  Beam  218 

Lash  V.  Lash  448 

Laskey  v.  Pcrrysburg  Board,  &c.  511  6 

Lasley  v.  Lasley  275 

Lass  V.  Sternberg  602  v 

Lassence  v.  Tierney  360,  511  a 

Lassiter  v.  Dawson  627 

La  Terriere  v.  Bulmer  551 

Latham  v.  Henderson  129 

Lathrop  v.  Bampton  828,  835,  843 

V.  Gilbert  127 

V.  Hoyt  134,  135 

V.  Pollard  195 

V.  Smalley  276,  459,  472,  900,  903, 

918 

V.  Tracy  770 

Lattimer  v.  Hanson   262,  264,  268,  492 

Latouch  V.  Lacom  593 

Latouche  v.  Dunsany  876 

Latourette  v.  Williams  640 

Latrobe  v.  Baltimore  331 

V.  Tiernan  411,  415 

Lattan  v.  Van  Ness  82 

Laughlin  v.  Fairbanks  438 

Laurel  County  Court  v.  Tr\isteea     415 

Laurens  v.  Jenney  299,  306,  309 

V.  Lucas  795 

Lauriat  v.  Stratton  873 

Lavender  v.  Stanton  582,  610,  793 


Lavender's  Policy,  In  re 
Lavcr  v.  Fielder 
Law  V.  Barchard 

V.  Butler 

V.  Mills 

V.  Skinner 
Law's  Estate 
Lawless  v.  Shaw 
Lawley,  In  re 

V.  Hooper 
Lawrence  v.  Bowie 


670 

208 

183 

238 

586 

590 

443 

120 

262,  254 

169 

848,  876, 

903 

V.  Cooke  121 

V.  Davis  593 

II.  Farmers'  Loan  &  Trust  Co. 

602  c,  602  q 

V.  Lawrence  75,  104,  134,  248, 

269,  341 

V.  Maggs  533 

V.  Smith  451 

V.  Stratton  222 

V.  Trustees,  &c.  856 

Lawrence's  Estate     254,  380,  383,  392 

LawTie  v.  Banks  311 

La  wry  v.  McGee  97 

Laws  V.  Law  126 

Lawson  v.  Campion  185 

V.  Copeland  900 

V.  Lawson  76,  511  c 

V.  Lightfoot  386 

V.  Morton  324 

V.  Spencer  237 

Lawton  v.  Ford  863 

Lay  V.  Brown  627 

V.  Duckett  812 

Laytin  v.  Davidson  171,  918 

Layton  v.  Layton  631,  636 

Lazarus  v.  Bryson  205 

Lea  V.  Grundy  665 

Lea's  Appeal  586 

Leach  v.  Ashcr  859  a 

V.  Ausbacker  814 

V.  Farr  104 

V.  Leach     112,  117,  118,  119,  195, 

538,  620 

Leadman  v.  Harris  591 

Leak  v.  Williams'  Adm'r  235 

Leak's  Heirs  v.  Leak's  Ex'r       729,  748 

Leake  v.  Leake  15,  321 

V.  Robinson  160.  383,  616,  622 

V.  Watson  328,  800,  815  c 

Leakey  v.  Gunter  75 

Lear  v.  Loggett  388,  555 

V.  Tritch  137,  795 

Learned  i'.  Welton  412 

Learoyd  v.  Whiteley  457 

Leary  v.  Corvin         126,  132,  133,  142, 

837 

Leavell  v.  Western  Ky.  Asy.  747 

Lea^dtt  v.  Beirne        508,  511,  655.  660 

V.  Peel  680,  768 

V.  Wooster  562,  571.  795 

Leay craft  v.  Hedden  655 

Leazure  v.  Hillegas  46 

Lechmcre  v.  Brotheridge  656 

V.  Carlisle  98,  367,  858 

V.  Charlton  577 

V.  Lavie  112.  113,  116 


Cll 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Locroix  V.  Malone  269,  341 

Ledge  v.  Morse  139 

Ledlic  V.  Vrooman  680 

Ledyard  v.  Chapin  602  x 

Lee  V.  Alston  871 

V.  Balcarras  530 

V.  Brown    476,  615,  618,  619,  624, 

915 

V.  Delane  476  a,  928 

V.  Egremont  632 

V.  Fernie  511  a 

V.  Ferris  77,  83,  93 

V.  Fox  127 

V.  Giles  511  c 

V.  Hamilton  95 

V.  Huntoon  77,  83 

V.  Kennedy  82 

V.  Lee  464 

V.  Patten  127,  206 

V.  Pennington  918 

V.  Prideaux  647,  648 

V.  Randolph  240,  280 

V.  Sankey  806 

V.  Simpson  511  c 

V.  Stuart  34 

V.  Young     276,  508,  509,  510,  511 

Lee's  Estate  677,  920 

Leech  v.  Leech  107,  584 

Leed  v.  Beeiie  863 

Leedham  v.  Chawmer  907,  909,  910 

Leedom  v.  Plymouth  Railway  757 

Leeds  v.  Amherst       446,  540,  869,  870 

V.  Munday  336,  337 

V.  Wakefield  493,  784 

Leeds  Banking  Co.,  Re  654,  659 

Leeke  v.  Bennett  541 

Lees  V.  Nuttall  206 

V.  Sanderson  422 

Lees'  Settlement  Trusts,  In  re          286 

Leete  v.  Bank  of  St.  Louis  647 

Leferve  v.  Leferve  748 

Leffler  v.  Armstrong  260,  602  r 

Le  Fort  v.  Delafield  245 

Lefroy  v.  Flood  112,  116 

Legard  v.  Hodges  82,  122 

V.  Johnson  673 

Legare  v.  Ashe  183 

Legatt  V.  Sewell  366 

Le  Gendre  v.  Byrnea  855 

Legg  V.  Goldwire  361 

■V.  Legg  639 

V.  Mackrell  271 

Legge  V.  Asgill  699,  705,  712 

Leggett  V.  Dubois  64,  131,  140 

V.  Grimmett  296,  297 

V.  Hunter    273,  281,  404,  414,  610 

V.  Leggett  133 

V.  Perkins  305 

Legh  V.  Legh  330 

Legh's  Settled  Estates,  In  re  477 

Lehigh,  &c.  Coal  Co.'s  Appeal  873 

Lehman  v.  Lewis  733,  837 

V.  Rothbarth      128,  245,  429,  468, 

471,  919 

Leicester  v.  Foxcroft  182 

V.  Rose  212 

Leichrist's  Appeal  135 

Leigh  V.  Ashburton  769 


Leigh  V.  Barry    411,  415,  416,  417,  421 

V.  Harrison  386  a 

V.  Leigh  117 

V.  Lloyd  768 

Leiper  v.  Hoffman  65,  126,  131 

Leisenring  v.  Black  202 

Leitch  V.  Wells  223,  814 

Leith  V.  Irwin  905 

Leith  Banking  Co.  v.  Bell  179 

Le  Jeune  v.  Budd  517 

Leland  v.  Hayden  545 

Le  Maitre  v.  Bannister  113,  116 

Le  Marchant  v.  Le  Marchant  113 

Leman  v.  Sherman  296 

V.  Whitley       76,  83,  162,  226,  232 

Lembeck  v.  Lembeck        377,  381,  383, 

392,  476  a 

Lemen  v.  McComas  921 

Lemmond  v.  People  160,  900 

Lenaghan  v.  Smith  882 

Lench  v.  Lench  127,  128,  137,  138, 

836,  839 

Le  Neve  v.  Le  Neve  217,  222, 

223 

Lengenfitter  v.  Ritching  210 

Lennard  v.  Curzon  876 

Estate  of  Lennon  715 

Lenow  v.  Arrington  610,  764 

Lent  V.  Howard  452,  920 

Leon,  In  re  56 

Leonard,  Re  511,  547,  548 

V.  Bell  391,  748 

V.  Diamond  309 

V.  P'ord  602  b 

V.  Green  133,  149 

V.  Leonard  185 

V.  Sussex  389 

V.  Powell  915 

Le  Page  v.  McNamara  724,  748 

Le  Prince  v.  Guillemont  592,  594 

Lerow  v.  Wilmarth  487,  553 

Leslie  v.  Bailie  927 

V.  Bell  127,  144 

V.  Devonshire  159 

V.  Guthrie  68,  345 

V.  Leslie  90,  91 

Lesser  v.  Lesser  248 

V.  Willetts  501 

Lester  v.  Frazer  34 

V.  Garland  395 

V.  Young  546 

L'Estrange  v.  L'Estrange  69 

Letch  V.  Hollister  159 

Letcher  v.  Letcher  126,  132,  137 

Letterstedt  v.  Broers  276 

Le  Vasseux  v.  Scratton  641 

Leventritt,  Matter  of  598 

Lever  v.  Andrews  126 

Levering  v.  Heighe  34 

V.  Levering  34 

Levet  V.  Needham  150,  152 

Levan  v.  Ritz  53 

Levis  V.  Kengla  79 

Levy  V.  Commonwealth  748 

V.  Home  750 

V.  Levy  41,  45,  384,  716,  738, 

741,  748 

V.  Mitchell  133,  137 


INDEX    TO    CASES    CITED. 
[References  are  to  sectiona.j 


cm 


Lewellin  v.  Cobbald  213.  826 

Lewes,  Re  929 

V.  Lewes  1 19,   388.  555 

Lewiu's  Trusts,  In  re  033 

Lewine  v.  Gerardo  383 

Lewis,  Ex  parte  774 

V.  Adams  647 

V.  Baird  259,  261 

V.  Beacon  559 

V.  Bcall  299 

V.  Bradford  221 

V.  Brice  655,  661,  671 

V.  Building  &  Loan  Ass'n  126 

V.  Castleman  864 

V.  Covillaud  238 

V.  Curtnett  97 

V.  Darling  670,  571 

V.  urn  475 

v.  Hillman  202,  206 

V.  James  324 

V.  Johns  678 

Lewis  V.  Lindley  171,  181 

V.  Lewis  76 
V.  Madocks          122,  837,  841,  842 

V.  McLemore  171 
V.  Mathews        272,  337,  648,  649, 

651 

V.  Merritt  189 

V.  Nelson  21,  71 

V.  Nobbs  422 

V.  Pead  190 

V.  Phillips  221 

V.  Price  639 

V.  Reed  404,  409 

V.  Rees  319 

V.  Robinson  141 

V.  Scaperton  236 

V.  Stanley  134 

V.  Starke  347 

V.  Taylor  815  6 

V.  Thornton  562 

V.  Wright  195,  431 

V.  Yale  600 

Libby  v.  Frost  98,  217,  827 
Library  Company  of  Philadelphia 

V.  Williams  511  a 

Liddard  v.  Liddard  112 

Lidderdale  v.  Montrose  69 

Lide  V.  Law  186 
Life  Assoc,  v.  Siddall        265,  337,  476, 
846,  849,  850,  853,  860,  863. 
869 

LiflBer  v.  Armstrong  602  e 

Liggett  V.  Wall  217 

Light  V.  Scott  104 

V.  Zeller  133,  144 

Lignon  v.  Alexander  234 

Like  V.  Bearsford  636 

Liles  V.  Terry  194.  202  a 
LUey  V.  Hey                 113,  255,  710,  732 

Lill  V.  Neafie  275 

Lillard  v.  Turner  660 

Lillia  V.  Ayre  655,  657 

Lillibridge  v.  Allen  815  c 

LiUy  V.  Tobbein  731 

Linch  V.  Cappey  464 

V.  Thomas  874 

Lincoln  v.  Aldrich  876  a 


Lincoln  v.  Allen  468 

V.  Morrison  122.  464,  828 

V.  Newcastle      359.  360.  373.  389, 

390 

V.  Winsor  432.  895.  904 

V.  Wright             226.  418,  419,  424, 

848 

Lindbloom  v.  Kidston  232 

Lindenberger  v.  Metlock  765 

Lindley  v.  Cross  680 

Lindo  V.  Lindo  186 

Lindow  v.  Fleetwood  288.  375 

Lindsay  v.  Harrison  646.  653 

V.  Lindsay  863 

Lindsell  v.  Thacker  336.  337,  648 

Lindsley  v.  Dodd  864 

Lines  v.  Darden  116,  253 

V.  Lines  104,  213 

Lingan  v.  Henderson  84,  234 

Lingard  v.  Bromley  848,  876,  879 

Lingenfelter  v.  Richey  226 

Lining  v.  Peyton  598,  790, 

794 

Link  V.  Link  75 

Linker  v.  Smith  213 

Linley  v.  Taylor  908 

Linn  v.  Davis  386  a,  815  a 

Linnel  v.  Hudson  124 

Linsley,  In  re  420,  420  a 

V.  Sinclair  142 

Linton  v.  Boley  598.  602  g 

Linville  v.  Golding  299 

Lipp  V.  Fielder  144 

Lippincott  v.  Barber  592 

V.  Davis  358 

V.  Evens  815  b 

V.  Lippincott  501 

V.  Ridgway  254 

V.  Warder  541 

V.  WikofJ  411,  499,  505 

V.  Williams  104 

Lipscomb  j;.  Nichols  126 

Liptrot  V.  Holmes  320 

Liquidation  Estates  P.  Co.  v.  Wil- 

loughby  347 

Lister  v.  Hodgson  97,  98,  102 

V.  Lister  195,  198,  635 

V.  Peckford  864 

V.  Stubbs  206,  427 

V.  Weeks  276 

Litchfield  v.  Baker  449.  451,  547 

V.  Pickering  547 

V.  White  417,  590,  914 

Liter  v.  Fishback  610 

Litt  V.  Randall  385 

Littell  V.  Grady  171,  848 

Littig  V.  Mt.  Calvary  Ch.  82,  96 

Little  !).  Bennett  284 

V.  Brown  237 

V.  Chad  wick  828 

V.  Little  477,  552 

V.  Thorne  476  a 

V.  Wilcox  24 

V.  Willford  701.  729,  748 

Little.  He,  Harrison  v.  Harrison        671 

Littlefield  v.  Cole  511 

V.  Smith  438 

Littlehales  v.  Gascoigne  468,  903 


CIV 


INDEX   TO    CASES    CITED. 

[References  are  to  sections.] 


Little  Rock  &  F.  S.  Ry.  Co.  v. 

Page  129 

Litton  V.  Baldwin  655,  661,  900 

Litzenberger's  Estate  415 

Liveright  v.  Sternberger  448 

Livermore  v.  Aldrich  126,  137,  138 

V.  Jenckes  592 

LivGsay  v.  Livesay  931 

Livesey  v.  Jones  712,  748 

Livingston,  In  re  282 

Livingston,  Pet'r  282 

V.  Ball  592 

V.  Hammond  613 

V.  Livingston     38,  48,  51,  95,  277, 

662,  564,  565,  566 

V.  Murphy  133,  171,  240 

V.  Newkirk  562,  566 

V.  Stickles  537 

V.  Wells  468,  471 

Livingston's  Case  918 

Llewellin  v.  Mackworth  858,  863 

Llewellyn's  Trusts  451,  551 

Lloyd  V.  Attwood  851 

V.  Baldwin           597,  795,  796,  800 

V.  Banks  438 

V.  Branton  512,  513,  514 

V.  Brooks  97 

V.  Carew  379 

V.  Carter  126,  137 

V.  Currin  215 

V.  Goold  112,  487 

V.  Griffiths  787 

v.  Hart  605,  611 

V.  Inglis  76 

V.  Lloyd  655,  706 

V.  Loaring  885 

V.  Lynch  137 

V.  Read        130,  144,  145,  146,  147 

V.  Rowe  918 

V.  Spillett     88,  125,  126,  138,  151, 

152,  162,  900 

V.  Taylor  501 

V.  Williams  600,  645 

Lobdell  V.  Hayes  324 

Locheim  v.  Eversole  126 

Lock  V.  Lock  532,  533 

Locke  V.  Farmers'  L.  &  T.  Co.     93,  96 

V.  Lomas     475,  597,  794,  799,  806 

Lockey  v.  Lockey  871 

Lockhart  v.  Canfield  328 

V.  Hardy  119 

V.  Northington  499,  501 

V.  Reilly       260,  457,  467,  848,  876 

V.  Wyatt  590,  591 

Lockridge  v.  Foster  171 

Lockwood  V.  Abdy  246,  907 

V.  Fenton  623 

V.  Riley  418 

V.  Stockholm  576 

Lockyer  v.  Savage  388,  555 

Locton  V.  Locton  121 

Loddington  v.  Kline  597 

Loder  v.  Allen  843 

Lodge  V.  Hamilton  639 

Loften  V.  Witboard  127 

Loftis  V.  Loftis  144 

Logan  V.  Birkett  672 

V.  Brown  84 


Logan  V.  Deshay 

569 

V.  Fairlee 

623 

V.  Fontaine 

918 

V.  Johnson 

137 

V.  Logan 

918 

V.  Simmons 

213 

Lomax  v.  Lomax 

616,  619 

V.  Pendleton 

462,  468 

V.  Ripley  77,  83,  84,  93,  159, 

511  a 
Lombard  v.  Morse  200 

Londenschlager  v.  Benton  759 

Londesborough  v.  Somerville    544,  556 
London  v.  Garway  157 

V.  Richmond  885 

London,    &c.    Bank    v.   Hanover 

Bank  122 

London  Bridge,  In  re  787 

London  Gas  Light  Co.  v.  Spottis- 

wood  877 

London  R.  Co.  v.  Winter  226 

Long  V.  Blackall  379 

V.  Cason  621,  863 

V.  Clapton  431 

V.  Dennis  512,  515 

V.  Fields  222,  815  c,  830 

V.  Fox  171,  843 

V.  Israel  891 

V.  King  127,  137,  144,  861 

V.  Long  286,  620,  615,  796 

V.  Mathieson  752 

V.  Mechem  124,  126,  137 

V.  Meriden  Britannia  Co.  592 

V.  Norcom  618 

V.  Rankin  784 

V.  Ricketts  514,  617 

V.  Scott  132 

V.  Serger  126 

V.  Vallean  863 

V.  White  647.  660,  855 

Long  Island  L.  &  T.  Co.,  In  re  195,  865 

Longbotham's  Estate  864 

Longford  v.  Eyre  511  6 

Longley  v.  Hall  918 

V.  Longley  157 

Longman  v.  Brown  714 

Longmate  v.  Ledger  189 

Longmore  v.  Broom  251,  256,  268, 

468,  607 

V.  Elcum      112,  116,  117,  118,  620 

Longton  v.  Wilsby  538 

Longwith  v.  Butler  602  c,  602  x 

Longworth  v.  Goforth  205 

Longworth's  Estate  556 

Lonsdale  v.  Beckett  291 

V.  Berchtoldt  119 

Lonsdale's  Estate  100 

Loomer  v.  Loomer  377,  383,  391, 

815  a 

Loomis  V.  Lift  212 

V.  Loomis  134,  171,  181,  438 

V.  McClintock  783 

V.  Spencer  66 

Loomis' s  Appeal  573 

Loosing  V.  Loosing  262,  386 

Lord  V.  Bishop  127 

V.  Brooks  545 

V.  Bunn  386  b,  655,  807 


INDEX    TO    CASES    CITED. 
[References  are  to  sectiond.] 


cv 


Lord  V.  Fisher  589 
V.  Godfrey            451,  508,  509,  547 

Lord   and   Fullerton'a  Contract, 

In  re  264 

Lord  Paget 's  Case  585 

Lord  Sandwich's  Case  511a 

Lorillard  v.  Coster  380 

Loring,  Ex  parte  236 

V.  Blake  381,  490,  507,  508 

V.  Elliott  152 

V.  Hildreth  96,  100,  103 

r.  Hunter  359,  370 

V.  Loring  117,  386  a,  620 

V.  Palmer  82 

V.  Salisbury  Mills  242,  670 

V.  Steinman  476  a,  928 

II.  United  States  Co.  588 

D.Wilson  252,254,511c 

Lorings  v.  Marsh        499,  721,  724,  731 

Lorman  v.  Clarke  855 

Los  Angeles  v.  Occidental  Oil  Co.     132 

Loscombej).  Wintringham  705,  725,  729 

Losey  v.  Stanley  347,  476  a,  499 

Losley  v.  Lesley  817 

Loss  V.  Obry  186 

Lothrop  V.  King  212,  591 

Lott  V.  Kaiser  171 

Louch,  Ex  parte  587 

Loucheim  v.  Casperon  594,  596 

Louisville  Tr.  Co.  v.  Columbia  F. 

&  T.  Co.  586,  907,  919 

Lounsbury  v.  Purdy    58,  126,  133,  142 

Lovat  V.  Leeds  627 

Lovatt  V.  Knipe  194 

Love  V.  Gaze  94,  150 

V.  Love  855,  858 

V.  Morris  910 

V.  Robertson  676 

Lovcgrove,  Ex  parte  910 

Lovell  V.  Minot  456 

Loveman  v.  Taylor  918 

Loveridge  v.  Cooper  438,  926 

Lovering  v.  Minot  550,  551 

V.  Worthington  382 

Lovett  V.  Farnham  104,  511 

V.  Taylor  162,  181 

Low  V.  Barchard  187 

V.  Bouverie  177,  438,  926 

V.  Brinnan  764 

V.  Carter  846,  924 

V.  Manners  514 

Lowden  v.  Lowden  841 

Lowe  V.  Convention  459,  503 

V.  .Jones  828 

V.  Morgan  873 

V.  Morris  918 

V.  Peers  516 

V.  Swift  484,  764 

Lowell  V.  North  602  o 

Lowell's  Appeal  700 

Lowenstein  v.  Evans  21 

Lowndes  v.  Garnett  &  Mosely  Co.  752 

V.  Lane  173,  176 

V.  Lowndes  616 

Lowrie's  Appeal  891,  918 

Lowry  v.  Commercial  Bank  242 

V.   Commercial   &    Farmers' 

Bank  814 


Lowry  v.  Farmers'  Bank  225 

V.  Farmers'  L.  &  T.  Co.  545 

V.  Fulton  259.  261,  401,  463 

V.  Houston  041 

V.  Tiernau  768 

Lowson  V.  Copeland  438,  440, 

465 

Lowther  v.  Charlton  222 

V.  Lowther  206 

Loyd  V.  Loyd  392 

Lucas  V.  At  wood  694 

V.  Brandreth  357 

V.  Coe  910 

V.  Doe  600 

V.  Harris  602  n 

V.  Lockhart  112,  117,  248 

V.  Oliver  602  v 

V.  Putney  754 

V.  Sanbury  &  Erie  R.  R.  Co.     589 

V.  Wade  237 

Luckett  V.  White  570 

Luckhart  v.  Luckhart  162 

Luckin  v.  Rushworth  196 

Lucknow  V.  Brown  613 

Luco  V.  De  Toro  863 

Luddy's  Trustee  v.  Peard         178,  194, 

202 

Ludington  v.  Mercantile  Bank        328, 

800,  815  c 

V.  Patton  195 

Ludlam  v.  High  733 

Ludlow  V.  Floumoy  171 

V.  Greenhouse  693,  724,  732. 

896 

V.  Hurd  159 

Ludwig  V.  Highley  58.  334 

Lueft  V.  Lueft  768 

Lufkin  V.  Jakeman  131,  141,  144, 

865 
Luke  V.  Kelmorey  119 

Luken's  Appeal         463,  468,  851,  918, 

919 
Lulham,  In  re  196 

Lumb  I'.  Milnes  634,  649 

Lumbering  Co.  r.  Powell  598 

Lumley,  In  re  670 

Lumpkin  v.  Rodgers  112 

Lund  V.  Blanshard  877 

V.  Lund  463,  468 

Lundy  v.  Lundy  181 

Lunham  v.  Blundcll  443 

Lupton  V.  Lupton      562,  569,  570,  796 
V.  White  447 

Luquire  v.  Lee  315,  316,  603 

Luscomb  V.  Ballard  262,  812 

Luscombe  v.  Grigsby  206 

V.  Willson  206 

Lush  r.  Wilkinson  149 

Lush's  Trusts  634 

Lusk  V.  Lewis  715 

Lusk's  -Appeal  195 

Luther  v.  Bianconi         8,  440,  532,  845 
Lutheran  Cong.  v.  St.  Michael's 

Church  733 

Luttrell  V.  Olmius  181,  211 

Lycan  v.  Miller  901,  910 

Lyddon  v.  EllisoD  376 

V.  Moss  869 


CVl 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Lyell  V.  Kennedy 
Lyford  v.  Thurston 
Lygon  V.  Lord 
Lyles  V.  Hattan 
Lyman  v.  Parsons 

V.  Pratt 
Lyn  V.  Ashton 
Lynch  v.  Cox 

V.  Dearth 

V.  Herrig 

V.  Spicer 

V.  Swayne 
Lynde  v.  Lynde 
Lyne,  Ex  parte 

V.  Grouse 

V.  Guardian 
Lyne's  Ex'rs  v.  Grouse 
Lynn  v.  Beaver 

V.  Bradley 

V.  Lynn 
Lynn's  Appeal 
Lyon  V.  Baker 

V.  Clark 

V.  Foscue 

V.  Gombert 

V.  Lyon 

V.  Marclay 

V.  Richmond 

V.  Saunders 

V.  Swayne 
Lyons  v.  Bass 

V.  Beard 

V.  Bodenhamer 

V.  Chamberlin 

V.  Jones 
Lypet  V.  Carter 
Lysaght  v.  Royse 
Lyse  V.  Kingdom      457, 

Lyster  v.  Burroughs 
Lytle's  Appeal 


M. 


865 
137,  217,  828 
615 
468 
508 
545 
679 
126 
237 

133,  137 
448 
520 
547 
414 

648,  652 
661 
182 
652 
94 
639 
134 
540 

432,  904 

232,  237,  239 

918 

223 

195,  205,  428 

863 

184,  226 
184 
680 
206 
918 
217 
468 
602?) 

669,  570 

511  a 

462,  520,  818, 

876,  877,  900 

122 

680 


M.,  In  re  56 

Maberly  v.  Turton  249,  255,  615 

Mabie  v.  Bailey  82,  96 

McAdam  v.  Logan  294 

McAfee  v.  Ferguson  213 

McAlister  v.  Burgess  701 

McAllister  v.  Barry  171 

V.  Commonwealth  463 

V.  Marshall  591 

V.  Montgomery  136 

McAlpin  V.  Burnett  232,  238,  239 

McAlpine  v.  Potter  918,  919 

Mc Artec  v.  Engart  187 

McArthur  v.  Scott  873 

Macartney  v.  Blackwood  872 

Macaulay  v.  Phillips  630,  632,  633, 

639,  645 

McAuley  v.  Wilson  724,  726 

McAuley's  Estate  82,  91,  93 

McBee  v.  Loftes  221 

McBride  v.  Mclntyre  260 

V.  Porter  733 


McBride  v.  Smyth  310  a,  652 

McBurney  v.  Carson  456 

McCaffrey,  Matter  of  484 

McCahan's  Appeal  459,  918 

McCahill  v.  McCahill  79 

McCain  v.  Peart  863 

McCall  V.  Coover  231 

V.  Harrison  244 

V.  Hinkley  592 

V.  Parker  33 

V.  Peachy  460,  918 

V.  Rogers  828 

McCallam  v.  Carswell  863 

McCall's  Estate  471 

McCalmont  v.  Rankin  226 

McCammon  v.  Petitt  138 

McCampbell  v.  McCampbell  562 

McCandless  v.  Warner  82 

McCandless's  Estate  863 

McCandlish  v.  Keen  235- 

McCann  v.  McCann  358 

V.  Randall  284 

McCants  v.  Bee  199 

McCarogher  v.  Whieldon  773,  806 

McCartee  v.  Orph.  Asy.  Soc.      38,  748 


V.  Teller 
McCarter  v.  Cornel 
McCarthy  v.  Decaix 

V.  Gould 

V.  McCarthy 

V.  Tyle 
McCartin  v.  Traphagen 

McCartney  v.  Bostwick 


34 

855 

184,  851 

69 

863 

861 

420  a,  848, 

876 

17,  126,  142. 

149,  240 

V.  Calhoun  195 

V.  Fletcher  144 

McCarty  v.  Ball  855 

V.  Blevins  67 

V.  Kyle  82 

V.  Pruet  232 

McCaskey  v.  Graff  215 

McCaskill  v.  Lathrop  &  Co.  815  c 

McCauly  v.  Givens  757 

McCauseland's  Appeal  918 

McCaw  V.  Blunt  918 

V.  Galbraith         64,  131,  305,  327, 

436 

McClain  v.  McClain  226 

V.  Pittsburg  Stock  Exch.  593 

McClauahan  v.  Henderson        195,  538 

McClane  v.  Shepherd 

McClellan  v.  McClellan 

McClellan's  Estate 

McClelland  v.  McClelland 

McClintie  v.  Ochiltree 

McClintock  v.  Dana 

V.  Irvine 
McCloskey  v.  Gleason 

V.  McCloskey 
McCloskey's  Succession 
McClug  V.  Lecky 
McClung  V.  Colwell 
McClure  v.  La  Plata  County 


V.  Miller 

V.  Purcell 

V.  Raben 

McClurg  V.  Wilson 


865 
52 
254,  383 
386  a 
655 
546 
357 
404,  441 
171,  181 
729,  748 
591 
130 
828 
98,  213 
165 
188 
620 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


evil 


McClusp  V.  Doak  132 

McColRham  v.  Hopkins  585 

McCollistcr  V.  Bishop  443 

McCoIIohkIi  v.  SoinmRrville  585 

Mcf'onias  o.  Lous  128 

McConibie  v.  Davis  243 

McConncU  v.  Gentry  126,  142,  162 

MacConncll  v.  Lindsay     652,  655,  661 

McCord  V.  Nabours  195,  598 

V.  O'Chiltroe  701,  724,  748 

McCormick  v.  Cooke  132,  133 

V.  Garnett  632 

V.  Grogan  181 

V.  Malin  187 

McCormick  Co.  v.  Griffin  76 

McCormick  Mach.  Co.  v.  Perkins    149 

McCosker  v.  Brady  280,  305,  341 

V.  Goldon  668 

McCourt  V.  Singers-Bigger  Co.         206 

McCown  V.  Jones  237 

McCoy  V.  Horwitz  456 

V.  Poor  860,  861 

V.  Scott  245 

McCrahen  v.  McCrahen  918 

McCrary  v.  Clements  858,  860 

McCraw  v.  Davis  189 

McCrea  v.  Purmont  843,  855 

V.  Yule  386 

McCreary  v.  Bomberger  511  c 

V.  Gewinner  82 

McCreery  v.  Hamlin  780 

McCroeklin  v.  McCrocklin  672 

McCrory  v.  Foster  127,  640 

V.  Guyton  238 

MacCubbin  v.  Cromwell        79,  82,  84, 

85,  259,  261,  262,  404,  416. 

420,  890 

McCue  V.  Gallagher  139 

McCulloch  V.  Cowher  172 

V.  Hutchinson  591 

V.  Tompkins  919 

McCuUough  V.  McCullough     452,  460, 

463 

McCullough's  Appeal  514 

McCullum  V.  Coxe  330 

McCurdy  v.  McCallum  112 

V.  Otto  99 

McDearmon  v.  Burnham  79 

McDermith  v.  Voorhcea        76,  81,  160 

McDermott  v.  Kealy  616 

V.  Lorillard  782 

V.  Strong  594 

McDevitt  V.  Bryant  328,  873 

McDonald  v.  Black  118 

V.  Bryce  160,  397 

V.  Hanson  774 

V.  Jarvis  476  a 

V.  King  500 

V.  Mass.  General  Hosp.      710,  747 

V.  May  230 

V.  McDonald  132,  863 

V.  Neilson  187 

V.  Richardson  430 

V.  Shaw  700,  729,  748,  766 

V.  Sims  863 

r.  Wal  grove  546 

V.  Walker  339,  340,  494 

McDonnell  v.  Harding       417,  443,  403 


McDoimoU  V.  Hcsilrigde  21.3 

McDonough  v.  McDonough  736 

V.  Murdoch       41,  42,  43,  120,  142 

McDougal  V.  Fuller  598 

McDougald  v.  Cary  341 

V.  Dougherty  594 

McDougall,  Matter  of  .541 

McDowell  V.  Brantley  817 

i).  Caldwell  618,911,918 

V.  Goldsmith  229,  230,  863 

V.  Lawless  562 

V.  Peyton  182 

V.  Potter  639,  863 

Macduff,  In  re  712 

McDuffie  V.  Montgomery  112 

McElhenny's  Appeal        469,  471,  891. 

910 
McElroy  v.  McEIroy  312,  357 

McKlvoy  V.  McElvoy        152,  312,  359 
McElwee  v.  McGill  592,  594 

McEvoy   V.    Boston    Five    Cents 

Sav.  B'k  97 

Macoy  v.  Shurmer  112 

McFadden  v.  Hefley  448 

V.  Jenkyns  86,  96,  102,  105 

McFadden's  Estate  546 

McFadin  v.  Catron  189 

McFall  V.  Kirkpatrick      305,  312,  358, 

920 
McFarland's  Appeal  511  a 

McFerrin  v.  White  680 

McGachen  v.  Dew  438,  467,  878, 

885 
McGar  v.  Nixon  456 

McGarger  v.  Nogles  320,  652 

McGaughey  r.  Brown  195 

McGeary  v.  McGeary  615 

McGeorge  v.  Bigstones  Gap  Imp. 

Co.  411 

McGhee  v.  Wells  132 

McCJibbon  v.  Abbott  254 

McGill,  hi  re  238 

V.  Doe  328 

McGillivray,  Re  275 

McGinity  v.  McGinity  137 

McGinn  v.  Schaeffer  890 

McGinnis  v.  Jacobs  137 

McGinness  v.  Barton  75 

McGirr  v.  Aaron  731,  748 

McGivney  v.  McGivney  141,  870 

McGlaughlin  v.  McGlaughlin  567, 

570 

McGlinsey's  Appeal  665,  666 

McGovern  v.  Bennett  437  a 

V.  Knox  82,  126,  144 

McGowan  v.  Gowan         126,  132,  133, 

181 

McGraw  v.  Bayard  873 

V.  Solomon  815  c 

McGregor  v.  Gardner  206 

V.Hall  602  d,  602  J,  602  f 

V.  McGregor  884 

McGuire  v.  Devlin  863 

V.  Gallagher  252 

V.  McGowan  126,  139 

1'.  Ramsey  126 

McHardy  i-.  Hitchcock  826,  827 

McHugh  V.  McCole  448,  715.  729 


CVIU 


INDEX   TO    CASES    CITED. 

[References  are  to  sections.] 


Mclllvaine  v.  Smith  386  a,  555 

Mcllvaine  v.  Gether  512 

Mcllwaine  v.  Hockaday  706 

Mcllwrath  v.  Hollander  223 

Mclntire  v.  Agricultural  Bank        602  I 

V.  Hughes  109,  111 

V.  Janesville  38 

V.  Knowlton  678 

V.  Lanesville  724 

V.  Prior  861 

V.  Skinner  75 

Mclntire  Poor  School  v.  Zanes- 

ville  Canal  Co.  38,  43,  121,  240, 

460,  698,  700, 

742 

Mcintosh  V.  Green  75,  134 

Mcintosh's  Estate  305 

Mclntyre  v.  Farmers'  Bank  87 

V.  Williamson  437  a 

Mack  V.  Mcintosh  222 

Mack's  Appeal  701,  731 

McKamey  v.  Thorp  127,  815  c 

Mackason's  Appeal  555 

Mackay  v.  Coates  328 

V.  Douglass  108 

V.  Gabel  220 

V.  Green  562 

V.  Langley  602  ff 

V.  Martin  215 

McKay,  In  re  336,  448 

V.  Carrington  38,  231 

McKee  v.  Dail  552 

V.  Judd  69 

V.  McKee's  Ex'r  541 

V.  Vail  171 

McKeen's  Appeal  556 

McKell  V.  Merchants'  Bank  661 

Macken  v.  Hogan  438 

McKenna,  In  re  122,  850 

McKennan  v.  Phillips        240,  668,  672 

McKenney  v.  Burns  162 

Mackenzie  v.  Mackenzie  585 

V.  Taylor  900 

V.  Trustees  of  Presbytery  117, 

722,  728,  729,  732,  742, 

744 

McKenzie  v.  Sumner  310,  647 

V.  McKeown  137 

McKern  v.  Handy  891,  894 

Mackey  v.  Maturin  665 

McKey,  Ex  parte  618 

Mackie  v.  Cairnes  591 

V.  Mackie  439,  450,  548,  551 

McKiernan  v.  McKiernan  920 

McKillip  V.  McKilHp  235 

McKim  V.  Aulbach  426 

V.  Blake  845 

V.  Doane  277,  284 

V.  Duncan  918 

V.  Glover  467,  849 

V.  Handy  294 

V.  Hibbard  468 

V.  Voorhies  72 

McKinley  v.  Coe  559,  576,  601 

V.  Irvine     _  195,  881 

McKinney  v.  Pinkard  187 

V.  Rhoades  593 

McKinnon  v.  Johnson  232 


Mackintosh  v.  Ogilvie  72 

V.  Pogose  96,  388,  655,  815  a 

V.  Townsend  741 

McKissick  v.  Pickle  227 

McKnight  v.  Brady  232,  239 

V.  McKnight  252 

V.  Taylor  228,  869 

V.  Walsh     468,  471,  472,  612,  613, 

614,  615,  918 

McKonkey's  Appeal  113,119 

Makreth  v.  Symmons         38,  217,  232, 

233,  235,  236,  239 

V.  Walmesley  178 

Mackworth  v.  Hinxman  380 

McLain  v.  School  Directors      732,  748 

McLanahan  v.  McLanahan  75 

V.  Wyant  670 

McLane  v.  Johnson  166 

V.  McDonald  546 

Maclaren  v.  Stainton  72 

McLaren  v.  Stainton  545,  556  a 

McLarren  v.  Brewer  127,  128 

Maclary  v.  Rezner  178 

McLaughlin  v.  Detroit  545 

V.  Fulton  127,  133,  828 

McLaurie  v.  Parthlow  82,  84 

McLaurin  v.  Fairly  75,  832,  840 

Maclay  v.  Love  662,  676,  685 

McLean  v.  Wade  715,  748 

McLearn  v.  McLellan  232 

McLemore  v.  Good  541,  556 

McLenegan  v.  Yeiser  248,  783,  786 

McLennan  v.  Sullivan  126 

Macleod  v.  Annesley  457 

McLeod  V.  Bullard  171 

V.  Drummond  225,  809,  810, 

811,  814,  815 

V.  Evans  122,  828 

V.  First  National  Bank      828,  836 

V.  Venable  127,  132 

McLoud  V.  Burchall  562 

V.  Roberts  632 

McLoughlin  v.  Greene  195 

McLouth  V.  Hunt  545 

McMahon  v.  Harrison  292 

McMeekin  v.  Edmonds  594 

McMillan,  Matter  of  448,  611 

V.  Deering  511  c 

V.  Hadley  126 

McMonagle  v.  McGlinn  861 

McMullen  v.  Beatty  304 

V.  O'ReUly  810 

V.  Scott  918 

McMurray  v.  McMurray         137,  144, 

801 
V.  Montgomery  416,  418,  421 

McMurry  v.  Mobley  206 

Macnab  v.  Whitbread  112 

McNair  v.  Pope  171 

McNair's  Appeal  225,  421 

McNamara  v.  Garrity  126 

V.  Jones  910 

McNees  v.  Swaney  199,  602  v 

McNeil  V.  McDonald  539 

McNeilage  v.  Holloway  640 

McNeile's  Estate  253,  254,  409 

McNeUle  v.  Acton      50,  226,  454.  800, 

810 


INDEX    TO    CASES    CITED. 
[Keferencea  are  to  sections.] 


CIX 


McNc'illedgc  v.  Galbrath  251,  255 

McNish  V.  Guerard  299,  305,  310 

McNutt  V.  Life  Ina.  Co.  602  i 

Macomb  v.  Kearney  700 

Macon,  etc.  Railway  v.  Parker  575 

Macijhcr.son  v.  Macpherson  550 

McPherson  v.  Cox  270 

V.  Rollins  104,  790,  790,  800 

V.  Snowdon         357,  300,  371,  374 

McQueen  v.  Farquhar    511  a,  709,  X30 

V.  Lilly  570 

V.  Meade  350 

McRaeny  i'.  .Johnson  330 

McRarey  v.  Huff  215 

McRee  v.  Means  112,  380 

McRemmon  v.  Martin  239 

McRoberts  v.  Carneal  804 

11.  Moudy  733 

McTighe  v.  Dean  827 

McVey  v.  Boggs  030 

McWhorter  v.  Agnew  498 

V.  I-?enson  919 

V.  Wright  580 

McWilliams  v.  Gough        202,  299,  311 

V.  Nisby  08 

Maddeford  v.  Austwick  178,  210 

Maddison  v.  Andrew         139,  144,  251, 

507,  510 

Maddocks  v.  Wren  243 

Maddox  v.  Allen  858 

V.  Maddox  512,  515,  555 

V.  Staine  379 

Mades  v.  Miller  408 

Madison  v.  Madison  141,  805 

Madox  V.  Jackson  250,  878 

Maonnel  v.  Murdock  590,  591 

Maffet  V.  Or.  &  C.  R.  Co.        343,  874 

Maffit  V.  Rynd  80 

Magdalen  College  v.  Att.-Gen.        737, 

800 

Magdalena  Steam  Nav.  Co.,  In  re     754 

Magee  v.  Carpenter  002  d 

V.  Cowperthwaite  918 

Magill  V.  Brown  40,  090,  099,  700, 

701,  704,  715,  721,  730, 

748 

Magner  v.  Crooks  380  a 

Magness  v.  Harris  195,  431 

Magruder  v.  Peter  232,  238,  501 

Maguiac  v.  Thompson  184 

Maguire  v.  Maguire  541 

V.  Scully  300,  301 

Magwood  V.  Johnston  001 

Mahan  v.  Mahan  109,  111 

Mahar  v.  O'Hara  576 

Maher  v.  Aldrich  79,  80,  803 

Mahlor  v.  Lees  220 

Mahon  v.  Savage  255,  250,  099 

r.  Stanhope  539,  777 

Mahony  v.  Hunler  202 

Mahorner  v.  Harrison  120 

Maia  v.  Eastern  Hospital  747 

Maiders  ?).  Culver's  Assignee  590 

Main's  Appeal  82 

Mais,  hi  re  275 

Maitland  v.  Backhouse  201 

V.  Bateman  440 

V.  Irving  201 


Maitland  t.  Wilson 
Major  V.  Herndon 

V.  Hunt 

V.  Lansley 

V.  Sorames 
Makepeace  ».  Rogers 
Malam,  In  re 
Malcolm  v.  O'Callaghan 


219 

93,  112 

448,  Oil 

047,  656 

680.  685 

803 

545 

513,  514, 

517,  910 

Malins,  In  re  774 

V.  Barker  IIJ 

V.  Keighley  112,  110 

V.  Malin  38,  82,  137,  189,  227 

Mallabar  v.  Mallabar         150,  151,  900 

Mallalieu  v.  Hodgson  212 

Mallet  V.  Smith  499 

Malloy  V.  Malley  137 

Mallorv  v.  Mallory  127,  280 

V.  Russell  322 

Mallott  V.  Wilson  96,  100,  103 

M alone  v.  Geraghty  845,  878 

V.  O'Connor  112 

Maloney  v.  Gonhue  680 

V.  Kennedy  064,  668 

V.  Kernan  217 

V.  L'Estrange  229,  230 

Maltby's  Case  179 

Malzy  V.  Edge  261,  207 

Man  V.  Warner  559 

Manahan  v.  Gibbons  410 

Manby  v.  Bewicke  803 

Manchester  v.  Bonham  903  a 

V.  Manchester  328 

V.  Mathewson  855 

V.  Sahler  680 

Manchester  School  Case  725 

Mandel  v.  Fidelity  Tr.  Co.  254 

Manderson's  Appeal  815  h 

Mandeville  v.  Solomon  211 

Manes  v.  Durant  213 

Mangles  v.  Dixon  438,  831 

Manhattan  Bank  v.  Walker  122 

Manhattan  Trust   Co.  v.   Seattle 

Coal  Co.  760 

Manice  v.  Manice  305 

Manion  v.  Titsworth  641,  803,  805 

Manly  v.  Slason  232,  233,  230, 

237,  239 

Mann  v.  Anderson  550 

V.  Ballott  733 

V.  Benedict  877 

V.  Betterly  187,  189 

V.  Darlington  212 

V.  Edson  324 

V.  Poole  598 

V.  Ricketts  863 

Mannen  v.  Bradberry  843 

Mannerback's  Estate  358 

Manners  v.  Furze  818 

Manning  v.  Albee  173 

V.  Cox  330,  520 

V.  Manning        429,  462,  464,  408, 

900,  916 

V.  Pippen  181,  226 

r.  Spooner  563 

V.  Thesiger  881,  885 

V.  Wopp  118 

Mannings  v.  Randolph  550 


ex 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.) 


Mannix  v.  Purcell  815  b 

Mannsell  v.  Hedges  208 

V.  Mansell       217,  241,  344,  509  b, 

784,  828,  844 

Mansell  v.  Vaughn  414,  491,  505 

Manser  v.  Dix  768 

Mansfield  v.  Mansfield  602  h,  672 

V.  McGinness  866 

V.  Shaw  816,  818 

V.  Wardlaw  122,  800 

Mansfield's  Case  189 

Manson  v.  Bailie  401,  432 

Mant  V.  Leith  458,  460,  467,  655 

Manternach  v.  Studt  606 

Manuf.  &  Mech.  Bank  v.  Bank  of 

Penn.  589 

Mapp  V.  Elcock  152,  157 

Mapps  V.  Sharpe  199,  602  v 

V.  Tyler  766 

Mara  v.  Browne  846,  856,  858 

V.  Manning  969 

Marbury  v.  Ehlen  225,  800 

March  v.  Berrier  611 

V.  Eastern  R.  R.  Co.  554 

V.  Head  633,  636 

V.  Romare  287,  297 

V.  Russell  467,  846,  851,  867 

Marcy  v.  Amazeen  82,  96 

Mare  v.  Sandford  591 

Mareck  v.  Minneapolis  Trust  Co.     787 
Marfiold  v.  Ross  602  z 

Margetts  v.  Barringer  648 

V.  Perks  418 

Marie  M.  E.   Church  v.   Trinity 

Church  126 

Marigny  v.  Remy  593 

Marine  Fire  Ins.  Co.  v.  Early  232 

Marker  v.  Marker  540,  851 

Markham  v.  Merrett  322 

Markle's  Estate  195 

Markley  v.  Camden  Safe  Dep.  & 
T.  Co.  204,  865 

V.  Singletarj'  648 

Marks  v.  Morris  602  ee 

V.  Semple  910,  918 

Markwell  v.  Markwell  104 

Marlborough,  Duke  of,  In  re  181 

Marlborough  v.  Godolphin       93,  252, 

383,  507,  508,  714 

V.  St.  John  477,  552 

Maries  v.  Cooper  218 

Marlow  v.  Johnson  602  ff 

Marples  v.  Brainbridge  512,  516 

Marquam  v.  Ross  199 

Marquette  v.  Wilkinson  98,  105 

Marr  v.  Oilman  351 

V.  Peay  270 

V.  Marr  195.  828 

Marrett  v.  Paskc  428 

Marrick  v.  Grice  667 

Marriott  v.  Kinnersley  402,  845 

V.  Marriott  182 

Marryatt  v.  Marryatt  280,  826 

V.  Townley         359,  361,  364,  366. 

371,  374 

Marsden's  Estate  276 

Trusts,  In  re  511  a 

Marsh,  In  re  511  c 


Marsh  v.  Alford 
V.  Att.-Gen. 
V.  Bellinger 
V.  French 
V.  Hunter 
V.  Keating 
V.  Keogh 


680 
724 
610 
790 
469 
846 
82 


V.  Marsh      562.  647,  666,  684 

V.  Marsh's  Ex'rs  70 

V.  Means  700,  724,  726 

V.  Oliver  863 

V.  Putnam  72 

V.  Ramsay  815  c 

V.  Reed  484,  529.  764 

V.  Renton  721,  725 

V.  Turner  232 

V.  WeUs  536 

V.  Wheeler  160,  765 

Marshall,  Ex  parte  337 

V.  Baltimore  Ohio  Railway        214 

V.  Blew  542 

V.  Bousley  366 

V.  Brenner  451 

V.  Carson  195 

V.  Christmas  232,  237 

V.  Collett  184 

V.  Crowther  550,  551 

V.  Fisk  299,  302 

V.  Fleming  1.37 

V.  Fowler  633,  636 

V.  Frank  219 

V.  Gibbings  632 

V.  Holloway        169,  393,  395,  619, 

906,  918 

V.  Joy  202 

V.  Lovelass  55 

V.  MiUer  680 

V.  Moseley  556 

V.  Sladden  282,  297,  329,  539. 

769.  777 

V.  Stevens  195.  655.  661,  782 

Marshall's  Estate      305,  448,  859,  860 

Marsteller's  Appeal  918 

Martelli  v.  Holloway  381 

Marten.  In  re  511  c 

Martens'  Estate,  In  re  554 

Marti's  Estate  112 

Martidall  v.  Martin  693 

Martin,  Re  269,  622 

V.  Aliter  602  d 

V.  Baldwin  815  b 

V.  Bell  648,  649 

V.  Blight  172 

V.  Coles  243 

t>.  Fort  311,  655 

■0.  Frantz  863 

V.  Frye  562,  563 

V.  Funk  96,  98,  99 

V.  Graves  167 

V.  Greer  127,  836 

».  Jackson  863 

■c.  Joliffe  830 

V.  Margham       388,  396.  399.  709. 

725.  738 

V.  Martin  71.  72.  76.  86.  142, 

238.  364.  427.  554.  629. 

631.  635.  843.  861.  862 

V.  McCord  748 


INDEX    TO    CASES    CITED. 
(References  are  to  sections.] 


CXI 


Martin  r.  Mitchell 

645 

V.  Moore 

448 

V.  Morgan 

178,  179 

V.  N.  Y.,  &c.  Co. 

133 

V.  Parnell 

881 

V.  Persse 

898 

V.  Ramsey 

100 

V.  Rayborn 

464,  468 

I).  Read 

873 

V.  Remington 

76 

V.  Sedgwick 

438 

V.  Sherman 

645 

V.  Smith 

322,  334,  861 

V.  Swannell 

248 

V.  Thomas 

223 

Martin's  Appeal 

552,  618 

Martindale  v.  Picquot 

416 

Martzell  v.  Stauffer 

843 

Marvel  v.  Marvel 

75,  79,  86 

Marvin  v.  Bernheimer 

168.  231 

V.  Brooks 

133 

Marwood  v.  Darell 

301 

Marx  V.  Clisby 

3.34,  800 

Maryland  Ins.  Co.  v.  Dalrymple       199 
Mason,  In  re  394 

V.  Baker  165 

V.  Bank  of  Commerce         766,  794 
V.  Bloomington  Lib.  Ass'n        700, 
706,  728 
V.  Chambers  70 

V.  Crosby  171,  230 

V.  Dry  611 

V.  Jones  508,  620 

V.  Limbury  112 

t.  Martin  428,  785 

P.Mason  305,347,508,511, 

611,  858,  859 
V.  McNeill  639,  640 

V.  Morgan  640 

V.  Morley  446 

r.  Perry  711,  732 

t'.  Pewabic  M.  Co.  242 

V.  Pomeroy  815  b 

V.  Rosevelt  918 

V.  Smallwood  299 

V.  Wait  404,  409,  606,  609 

V.  Wheeler  511  c 

V.  Whitehorn  443,  444 

V.  Williams  189 

Mass.  Hosp.  V.  Amory  275,  286 

V.  Fairbanks  603 

Mass.  Soc.  for  Prevention  of  Cruelty 

to  Animals  v.  Boston  705 

Massenburgh  v.  Ash  379,  382 

Massett  v.  Pocock  894 

Massey  v.  Banner     406,  441,  443,  444, 

463,  901,  914 

V.  Davies  206 

V.  Huntington  98,  99 

V.  Mcllwaine  217 

V.  O'Dell  863 

V.  Parker  646,  647,  648,  652, 

653,  671 

t).  Sherman  112 

V.  Stout  459,  466 

Massie  v.  Watts  70,  71.  72 

Massingbred's  Settlement,  Re  454, 

462,  466,  468,  847 


Massy  v.  Stout 
Master  v.  DeCroismar 

V.  Fuller 
Ma.sters  v.  Masters 
Mastin  v.  Barnard 
Mather  v.  Bennett 

V.  Norton 

V.  Thomas 
Mathers  v.  Prestman 
Mathes  v.  Bennett 
Mathew  v.  Hanbury 
Mathews  v.  Bliss 


276 

64,  364 

657,  658 

572,  573 

262 

863 

796,  801 

338 

780 

463 

171 

178,  180 

V.  Brise  443,  444,  461,  463 

V.  Guess  639 

V.  Hey  ward  458 

V.  Keble  393 

V.  Masters  706 

V.  Mathews  421 

V.  Stephenson  815  b 

Mathewson  v.  Wakelee  828 

Mathias  v.  Mathias  841 

Mathis  V.  Mathis  918 

Mathison  v.  Clarke  431,  432,  904 

Mattex  V.  Weand  237 

Matthern  v.  Rankin  305 

Matthew  v.  Brise  871 

V.  Holman  610 

V.  Marow  724 

Matthews  v.  Bagshaw  905 

V.  Capshaw  511,  511  c,  800 

V.  Dellicker  827  a 

V.  Delta,  &c.  R.  Co.  232,  235 

V.  Dragand  195,  915 

V.  Leaman  85 

V.  McPherson  328,  329 

V.  Ward  6,  17,  299,  301,  321, 

327,  328,  349,  436,  520 

Matthie  v.  Edwards  602  o,  602  s, 

602  ee,  770,  782 

Mattison  v.  Mattison  386  a 

Mattocks  V.  Moulton  264,  452,  459,  460 

Mattox  V.  Eberhart  780 

Maud  V.  Maud  112 

Maul  V.  Reder  210,  223,  851 

V.  Rider  851 

Mauldin  v.  Armstead     264,  343,  602  e, 

602  m 

MaundrcU  v.  Maundrell  511  c 

Maundy  v.  Maundy  182 

Maunsell  v.  Hedges  208 

Maupin  v.  Dolany  618 

Maverick,  &c.  Soc.  v.  Lovejoy  243 

Maw  V.  Pierson  246 

Maxwell  v.  Barringer  863 

V.  Finnic  275 

V.  Kennedy  229,  230 

V.  Pittinger  191 

V.  Wcttenhall  600 

V.  Wood  95 

May  V.  Armstrong  900 

V.  Frazer  404,  500 

V.  Mav  274,  276 

i;.  Selby  884 

V.  Steele  126 

I'.  Taylor  328 

Mav's  Heirs  v.  Frazer  779 

Mayall  t^.  Mayall  610,  764 

Mayberry  v.  Neely  649 


cxu 


INDEX    TO    CASES    CITED, 
[References  are  to  sections.) 


Maybury  v.  Brien  323 

Mayd  v.  Field  652 

Mayer  v.  Galluchat  432,  661.  895 

V.  Gould  848 

V.  Kane  127,  132,  133,  837 

V.  Montreon       509,  826,  827,  877, 


V.  Pullan 

602  e 

V.  Townsend 

360 

Mayficld  v.  Clifton 

639 

V.  Donovan 

275 

V.  Forsyth 

82,  162 

V.  Kegour 

329 

Mayham  v.  Coombs 

232,  236 

Mayhew,  7n  re 

511  c 

V.  Crickett 

210 

Maynard  v.  Cleveland 

437  a 

V.  Tyler 

189 

V.  Williams 

676 

Maynel  v.  Massey 

581 

Mayor  v.  Davenport 

260 

V.  Elliott 

43 

V.  Nixon 

732 

V.  Williams 

223 

Mayor  of  Coventry  v.  Att.-Gen.       42, 

275 
Mayor  of  London's  Case  694,  699 

Mayor    of    Lyons    v.    Advocate- 
General  of  Bengal  699,  725, 

728 
V.  East  India  Co.  741 

Mayor  of  South  Molton  v.  Att.- 
Gen.  745 
Mays  V.  Beech  254 
Maywood  v.  Lubcock  218 
Maze's  Ex'r  v.  Maze                    122,  646 
Mazyck  v.  Vanderhost                         380 
Meacham  d.  Sternes                     596,  918 
Meachey  v.  Young  612 
Mead  v.  Chesborough  B'ld'g  Co.      195 
V.  Langdon  183 
V.  Merritt  72 
V.  Orrery             217,  225,  809,  810, 
811,  815 
V.  Phillips                                        591 
Meade  v.  Campbell                              448 
Meakings  v.  Cromwell         64,  499,  501 
Meason  v.  Kaine                                  134 
Mebane  v.  Mebane                           386  a 
Mechanics'  Bank,  In  re    411,  413,  760 
V.  Der  Bolt                                      816 
V.  Edwards                                    347 
V.  Gorman                                     592 
V.  Seton                                            242 
Meconkey's  Appeal                          511  c 
Med  bury  v.  Watson                             173 
Medecai  v.  Parker                                 520 
Medland,  In  re                            440,  466 
Medley  v.  Davis                                   232 
V.  Horton                                347,  670 
Medlicott  v.  O'Donnell      228,  855,  861 
Medworth  v.  Pope  66 
Mee  V.  Mee                                       75,  76 
Meecham  v.  Steetle                               305 
Meek  v.  Briggs              386  a,  386  b,  392 
V.  Kettlewell         98,  100,  101,  102, 
105,  HI 
Meeker  v.  Puyallup                             705 


Meeting  St.  Bapt.  Soc.  v.  HaU        312, 
734.  748 
Megargal  v.  Saul  232 

Megargel  v.  Naglie  310  a,  652 

Meggison  v.  Moore  112,  114,  116 

Meggott  V.  Meggott  871 

Megod's  Case  17 

Megraw  v.  Woods  661 

Mehrtens  v.  Andrews  467,  869 

Meier  v.  Bell  126,  142 

Meigs  V.  Dimock  232 

V.  Meigs  103 

Meikel  v.  Greene  39 

Meinertzhagen  v.  Davis      55,  286,  297 
Melanefy  v.  O'Driscoll  613,  615 

Meldon  v.  Devlin  547 

Meldrin  v.  Trustees  545 

Meldrum  v.  Scorer  328,  330,  886 

Melery  v.  Cooper  238 

Melick  V.  Voorhees  845 

Mellick  V.  Asylum  706 

Melling  v.  Leak  866 

Mellingen  v.  Bausmann  642 

Mellish  V.  Robertson  184 

Mellish's  Estate  850 

Mellor  V.  Porter  52 

Meloney,  In  re  280 

Melton  V.  Camp  252 

Memphis  Barrel  Co.  v.  Ward  242 

Mence  v.  Mence  157 

Mendenhall  v.  Mower  276  a 

Mendes  v.  Guedella  412,  418,  442 

Mendon  v.  Merrill  98 

Menier  v.  Hooper's  Tel.  WorKS         242 
Mennard  v.  Welford  275,  284,  292 

Mer.  Man.  Co.  v.  Smith  586 

Mercantile  Nat.  Bank  v.  Parsons     225 
Mercantile Tr.  Co.  v.  St.  Louis,  &c. 

Ry.  Co.  828 

Mercein  v.  People  672 

Mercer  v.  Buchanan  645 

V.  Hall  517 

V.  Safe  Dep.  Co.  503 

V.  Stock  77,  140 

Mercers'  Co.  v.  Att.-Gen.  725 

Merchant  Tailor's  Co.  v.  Att.-Gen,   725 

Merchants'  Bank,  In  re  275,  280 

Merchant's  Estate  730,  733 

Merchants'  Nat.  Bank  v.  Crist        568. 

576.  802 

Merchants'  Ins.  Co.  v.  Abbott       815  c 

Meredith  v.  Heneage         112,  113,  115, 

116.  153 

Merest  v.  James  13.  347 

Merigan  v.  McGonigle  82,  96 

Merket  v.  Smith  127 

Merlin  v.  Blagrave         385,  476  a,  922, 

928 

MeroUa  v.  Lane  511  c 

Merriam  v.  Dunham  448,  611 

V.  Harsen  667 

V.  Hassam  860,  864 

Merrick  v.  Waters  129,  205,  206 

Merrick's  Estate  462,  463,  468 

Merrill  v.  Am.  Baptist  Union  380, 

384,  736 

V.  Fowle  602  a 

V.  Hussey  127,  133 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


CXIU 


Morrill  v.  Moore 

918 

V.  Neill 

599 

V.  Peaslee 

95 

V.  Purdy 

661 

V.  Smith 

127 

V.  Swift 

593 

Merriott  v.  Givena 

602  00 

Merritt  v.  Bucknam 

380,  384.  730 

V.  Farmers'  las.  Co. 

336.  337 

V.  Jenkins 

918  n 

V.  Lambert 

202 

V.  Lyon 

664 

t).  Merritt 

448,  863 

V.  WoUs 

232.  239 

V.  Wilson 

59!) 

Mcrriweather  v.  Booker 

633 

Merry  v.  Abney 

277 

V.  Ryves 

517,  519 

Merryman  v.  Enler 

202 

Morsereau  v.  Bennet 

82 

Mersey  Docks,  &c.  v.  Gibbs     744.  914 
Mershou  v.  Duer  324 

Mersman  v.  Mersman  476  a 

Morton  v.  O'Brien  568.  576.  865 

Morvin,  In  re  381 

Moserole  v.  Meserole  398 

Mesgrett  v.  Mesgrett        611,  517.  518, 

519 
Mo.sscna  v.  Carr  547 

Messenger  v.  Clark  664 

V.  Gloucester  694 

Mossuor  V.  Giddinga  610 

Mostaor  v.  Gillespie  181 

Metealf  v.  Cook  655.  661 

Metcalfe  v.  Hutchinson  581 

V.  Metcalfe  388 

Metford  School  156 

Methan  v.  Devon  86.  93 

Methodist  Church  v.  Clark  729 

V.  Jaques  655,  660,  665 

V.  Remmington  46,  715,  724, 

728,  731,  748 

V.  Stewart  413 

V.  Warren  748 

Methodist  Soc.  of  Georgetown  v. 

Bennett  518 

Methold  V.  Turner  615 

Metropolitan  Nat.  Bank  v.  Camp- 
bell C.  Co.  828 

V.  Rogers  149 

Moure  v.  Moure  366,  371,  372 

Meux  V.  Bell  105 

V.  Howell  590 

V.  Maltby  71,  72,  885 

Mews  V.  Mews  664 

Meyer  v.  HoUe  152 

V.  Simonson  457,  458,  551 

Meyer's  Appeal  918 

Meyers  w.  N.  Y.  County  Bank  122 

Michael  v.  Baker  32 

V.  Jones  437  a 

Michael's  Trusts,  In  re  671 

Michell  V.  Michell  671 

Michigan  State  Bank  v.  Gardner      243 
Michoud  V.  Girod  195,  197,  205, 

207,  229,  230,  745,  855 
Middaugh  v.  Fox  864 

Middleborough  Nat.  Bank  v.  Cole  661 
VOL.   I.  — h 


Middlebrooks  v.  Ferguson  511  c 

Middlcmas  v.  Stevens  484 

Middletou  v.  Clithrow  701 

V.  Dodswoll  484,  818,  819 

V.  Middlcton  169.  181,  183 

V.  Reay  293 

V.  Spicer               61,  327.  427,  437, 

701 
Midland   Counties   Railw.   Co.  v. 

Wostcombc  494 

Midland  Great  Western  Railw.  v. 

Johnson  184 

Midmor  v.  Midmer  138 

Mifflin  County  Bank's  Appeal  831 

Miggett's  Appeal  195 

Mikol  V.  Mikcl  914 

Milbank  v.  Collier  885 

Mildmay  v.  Mildmay  220 

Miles  V.  Bacon  596,  891,  910 

V.  Durnford         225,  809,  810,  811 

V.  Erviu  202 

V.  Fisher  320 

V.  Knight  765 

V.  Leigh  569 

V.  Neave  270 

V.  Thorne  860 

V.  Wheeler  205,  865 

Miles's  Will,  In  re  455 

Milholland  v.  Whalen  82,  96 

Milhous  V.  Dunham  458,  814 

Millar  v.  Craig  923 

Millard  v.  Eyre           275,  282,  283.  293 

V.  Hathaway  126.  137,  863 

Millard's  Case  219.  521,  828 

Milledge  v.  Lamar  546 

Millen  v.  Guerrard  544.  545 

Miller.  In  re  477,  553 

V.  Albright  239 

V.  Atkinson  700.  720.  748 

V.  Antle  215 

V.  Argyle  602  ee 

V.  Baker               141.  144,  863,  865 

V.  Batz  863 

V.  Beverleys       324,  464,  468,  910. 

912.  918 

V.  Bingham  646.  652,  653 

V.  Blose  133,  141,  143 

V.  Brown  680 

V.  Butler  328,  873,  874 

V.  Chittenden  384.  748 

V.  Clark  82 

I'.  Congdon  263,  574 

V.  Conklin  592 

V.  Cotton  226 

V.  Cramer  920 

V.  Davis  165,  612 

V.  Evans  774,  779 

V.  Fenton  879 

V.  Franciscua  230 

V.  Gable  733,  734,  748 

V.  Harwell  562,  573 

V.  Hine  685 

V.  Hull                602  t,  602  u,  602  aa 

V.  Knight  282 

V.  Lerch  42,  45 

V.  Macomb  380 

V.  Mclntire  228,  855 

V.  Meetch            248,  262.  308,  499 


CXIV 


INDEX   TO    CASES    CITED. 
IReferencea  are  to  sections.] 


Miller  r.  Miller  126, 

133, 

206, 

547,  672 

Minneapolis,  &c.  R.  Co. 

V.  Lund     126, 

V. 

Morrison 

863 

142 

V. 

Newton 

655 

Minns  v.  Billings 

705,  710 

V. 

Pearce 

181 

Minor  v.  Rogers 

82 

V. 

Porter 

697, 

715, 

731,  748 

V.  Wicksteed 

569 

V. 

Priddon 

284, 

806,  808 

Minot  V.  Amory 

551 

V. 

Proctor 

441, 

458,  927 

V.  Atty.-Gen. 

159,  711 

V. 

Race 

837 

V.  Baker 

722,  729 

V. 

Rosenberger 

347 

V.  Boston  Asylum 

730 

V. 

Rowan 

705,  712 

V.  Mitchell 

135,  172,  215 

V. 

Rutland,  &c. 

Railway 

757 

V.  Paine 

544,  545 

V. 

Saxton 

133,  865 

V.  Prescott 

783,  785 

V. 

Scammon 

167 

V.  Thompson 

547,  548 

V. 

Stagner 

790 

Minton  v.  Pickens 

828 

V. 

Stanley 

538 

Minturn  v.  Seymour 

97,  98,  367 

V. 

Stokely 

137 

Minuse  v.  Cox    462,  568, 

780,  782, 894 

V. 

Stump 

324 

Mirehouse  v.  Scaife 

569.  570,'*573 

V. 

Thatcher 

75 

Missionary  Society 

730,  748 

V. 

Welles 

178 

V.  Humphreys 

377,  736 

V. 

Wetherby 

685 

Missouri  Hist.  Soc.  v.  Academy  of 

V. 

Whittier 

911 

Science                     694, 

728,  730,  733 

V. 

Williams 

664 

Mitau  V.  Roddan 

894,  910 

V. 

Williamson 

655, 

660,  810 

Mitchell  V.  Adams 

264 

V. 

Wilson 

162 

V.  Beal 

590 

Miller's  Case 

17 

V.  Bower 

584 

Estate         554, 

606, 

609, 

639,  918 

V.  Bunch 

72 

Millet 

V.  Rowse 

636 

V.  Colburn 

437  o.  539 

Millig 

an  V.  Mitchell 

734,  816 

V.  Colglazier 

127 

Milliken  v.  Ham 

126 

V.  Corbett 

769 

Milling  V.  Leak 

860 

V.  Gates 

647 

Millinger  v.  Bausman 

676 

V.  Gazzam 

586 

Mills 

V.  Argall 

599 

V.  Holmes 

918 

V. 

Banks 

578 

581 

597,  768 

V.  Kingman 

35 

V. 

Davison 

730, 

732, 

736,  742, 

744 

V.  MitcheU          112, 

116,678,584. 
684 

V. 

Dugmore 

773 

V.  Nixon 

291 

V. 

Farmer 

156, 

693, 

705,  708, 

V.  O'Neil 

137 

714,  719 

724 

725 

729,  739 

V.  Otey 

677 

V. 

HoflFman 

452 

V.  Pitner 

282 

V. 

Mills 

195, 

440, 

451,  455, 

V.  Reed 

195,  538 

467 

547 

770,  787 

V.  Rice 

262 

V 

Newbury 

732 

V.  Sevier 

628 

V. 

Osborne 

438,  453 

V.  Stiles 

590 

V. 

Post 

828 

V.  Whitlock 

437  a 

V 

Robarts 

616 

V.  Winslow 

68 

V 

Swearingen 

828 

Mitchell's  Estate 

560 

V 

Taylor 

783 

Will,  In  re 

245 

Millspaugh  v.  Putnam 

98 

Mitchelson  v.  Piper 

474 

Milmo  Nat.  Bank  v 

.  Cobbs 

873 

Mitchum  v.  Mitchum 

205 

Milmo's  Succession 

443 

Mitford  V.  Mitford    239, 

633,  635,  641 

Miiner,  In  re 

511c 

V.  Reynolds     41,  47 

,61,  697,  704, 

V 

Colmer 

633 

706, 

712,  720,  741 

V 

Freeman 

126.  147 

Mittenberger  v.  Schlegel 

578 

V 

Hyland 

828 

Mix  V.  King 

181 

V 

Stanford 

133 

Moayon  v.  Moayon 

673 

V 

Turner 

35 

Mobile,  &c.  Railway  v.  Tolman      754, 

Milnes  v.  Slater 

563 

757 

Milroy  v.  Lord 

96 

100,  102 

Mobile  Life  Ins.  Co.  v.  RandaU        828 

Milsington  v.  Mulgi 

•ave 

608 

532,  534 

Mocatta  v.  Murgatroyd 

347 

Mimms  v.  Delk 

498,  766 

Moddewell  v.  Keever 

599 

Mims 

V.  Chandler 

133 

Modlin  V.  Kennedy 

546 

V 

Macklin 

309 

Modrell  v.  Riddle 

137 

Minchin  v.  Minchin 

76 

MocUer  v.  Poland 

764,  770 

V 

Nance 

122 

Moerlein  v.  Heyer 

570 

Mines 

V.  Lockett 

232,  237 

Moffatt  V.  Bingham 

864 

V 

Mason,  &c.  R.  R 

232,  237 

V.  McDonald 

127,  836 

Minet 

V.  Hj'de 

630 

V.  McDowall 

585 

v 

Vulliamy 

741 

V.  Tuttle 

815  6 

INDEX    T(J    CASES    CITED. 
(References  are  to  sections.] 


cxv 


Mogg  V.  Hodges  57 

V.  Mogg  385,  390 

Moggeridge  v.  Grey  275 

V.  Thackwell       156,  690,  693,  705, 

708,  714,  719,  72:i,  724, 

729,  739 

Mohn  V.  Mohn  86 

Mohun  V.  Mohun  747 

Moir  V.  lirown  273 

Moke  V.  Nome  69,  297 

Mole  V.  Mole  616 

V.  Smith  347 

Moll  V.  Gardner  248,  766 

Mollan  V.  Griffith  662,  573 

Molony,  In  re  901 

V.  Kennedy  626 

V.  Kernan  206,  219 

Molton  V.  Camroux  189 

V.  Morton  684 

Molum  V.  Molum  891,  894,  896 

Monahan  v.  Gibbons  421 

V.  Monahan  165 

Monday  v.  Vance  104,  386  a,  670 

Monell  V.  Monell  416,  419,  421 

Money  v.  Herrick       75,  132,  133,  137, 

181 

Money  penny  v.  Bristow  871 

V.  Bering  376,  385,  390 

Mong  V.  Roush^  729,  748 

Monjo  V.  Woodhouse  253 

Monk  V.  Mawdesley  511  c 

Monks  V.  Monks  903  a 

Monro  v.  Allaire  195,  199 

Monroe  v.  James  262 

V.  Trenholm  655,  667,  671 

Monson  v.  Hutchin  84,  134,  162 

Montacutc  r.  Maxwell  226 

Montagu  !'.  Pacific  Bank  828 

Montague  j;.  Dawes      199,  495,  602  w, 

602  X,  602  gg 

V.  Garnett  843 

V.  Hayes  82 

V.  Priester  864 

Montefiore,  Ex  parte  836 

V.  Behrens  630 

V.  Browne  784 

V.  Guedalla  297 

Montesquieu  v.  Sandys  188,  202 

Montford  v.  Cadogan       260,  261,  467, 

532,  534,  847,  848.  849,  877 

Montgomery  v.  Agricultural  Bank  661 

V.  Bath  873,  882 

V.  Beavan  929 

V.  Commercial  Bank  588 

V.  Dorion  55 

V.  Eveleigh  661 

V.  Hobson  230 

V.  Johnson  261 

V.  McElroy  569 

V.  McEwPD  602  00 

V.  Milliken  500 

Montgomery's  Appeal  918  w 

Montpelier  v.  E.  Montpelier  275 

Moody,  In  re  616 

V.  Farr  328 

V.  Flagg  769 

V.  Fulmer  600,  518 

V.  Gay  72 


Moody  V.  Vandyke  195,  205,  500 

Moons  V.  De  Bernalea  464,  847 

Moor's  Appeal  924 

Moorcroft  v.  Dowding  82,  400 

Moore,  In  re  512 

V.  Black  871 

V.  Blake  877 

V,  Burnet  17,  328,  520 

V.  Burrows  231 

V.  Campbell  171,  181 

V.  Clay  219 

V.  Cleghorn  357 

V.  Crawford  169 

V.  Crofton  107,  108,  109 

V.  Darton  87 

V.  Dimond  264,  511  h 

V.  Ellis  673 

V.  Eure  443 

V.  Frowd  432,  !=.r)4,  895,  904 

V.  Green  135 

V.  Halcombe  233,  239 

V.  Hamilton  453 

V.  Harris  653 

V.  Henderson  880 

V.  Hilton  205 

V.  Horsley  79,  134,  162,  212 

V.  Hussey  48 

V.  Jackson  349 

V.  Jones  649 

V.  Lampkin  815  h 

V.  Lockott  766 

V.  McGlynn  197,  275 

V.  McLure  127,  828,  836 

V.  Moore         95,  96,  137,  147,  381. 

606,  627,  629,   632,   665,  670, 

671,  721, 724. 728, 731,  748,931 

V.  Morris  647,  668 

V.  Prance  900 

V.  Raymond  238 

V.  Rawlings  149,  678 

V.  Read  191 

V.  Robbins  448 

V.  Scarborough  665 

V.  Shcppard  863 

II.  Shultz  298,  310,  498 

V.  Simonson  477,  554 

V.  Sinnott  386  n 

V.  Smith  929 

V.  Stinson  310,  677,  920 

V.  Tandy  421 

V.  Thornton  633 

V.  Vinten  878 

V.  Zabriskie  918 

Moore's  Estate  920 

Moorhousc  v.  Calvin  208 

Moorman  v.  Crockett  279 

Moors  V.  ^^'J•man  918  n 

Mora  V.  Manning  849 

Moran  v.  Moran         159,  171.  181,  715 

Moravian  Soc,  In  re  284 

Mordecai  r.  Parker  17,  328 

V.  Schirraer  264,  493,  500 

Morden  r.  Chase  299 

More  V.  Bennett  21 

I'.  Calkins  910.  918 

V.  Freeman  672 

V.  Mayhow  219,  220,  221 

Morehead  v.  Brown  918 


CXVl 


INDEX    TO    CASES    CITED. 
(References  are  to  sections.] 


Morehouse  v.  Cotheal  546 

Moreton  v.  Harrison  232.  234,  238 

Morey  v.  Herrick  133,  181,  215 

Morffew  v.  San  Francisco,  &c.  R. 

Co.  312,511c 

Morgan,  Ex  parte      209,  336,  337,  870 

V.  Dalrymple  232 

».  Elam  661 

V.  Halford  227 

V.  Hannas  918 

V.  Higgins  20 

V.  Homans  432 

V.  Malison  96,  97,  101 

V.  Morgan  324,  397,  450,  451,  547, 

551,  584,  871 

V.  Otey  456 

V.  Rogers  299 

V.  So.  Milwaukee,  &c.  Co.         594 

V.  Stephens  907 

Morgan's  Estate  104,  252,  386  a 

Moriarty  v.  Martin  112,  254 

Moriee  v.  Durham    116,  150,  157,  159, 

507,  697,  703,  711,  712 

Morison  v.  Morison  907,  910 

Morley  v.  Bird  136 

V.  Hawke  840 

V.  Loughnan  189 

V.  Morley  347,  441,  914 

V.  Rennoldson  515 

Morley's  Trusts  337 

Mormon  Church  v.  U.  S.  711,  728 

Mornington  v.  Keane  122 

V.  Selby  183 

Morony  v.  Vincent  892 

Morrell  v.  Dickey  891 

Morret  v.  Paske  206,  430,  431 

Morrill  v.  Lawson  878,  881 

Morriman's  Trusts  633 

Morris,  In  re  815  b 

V.  Burroughs  201 

V.  Clare  139 

V.  Ellis  698.  919 

V.  Hanson  143 

V.  Joseph  206 

V.  Kent  272 

V.  McCulIoch  214 

V.  Morris    162,  260,  540,  610.  729, 

748.  771 

V.  Mowatt  562 

V.  Nixon  206.  226 

V.  Preston  290 

V.  Reigel  206 

V.  Remington  72 

V.  Thompson  748 

V.  Wallace  456.  459 

r.  Way  44.  602  i 

Morris's  Appeal  600 

Morris  Canal  v.  Emmett  174 

Morrissey  v.  Mulhern  663 

Morrison,  In  re  623 

V.  Bean  602  gg 

V.  Beirer  731.  748 

V.  Kelly  296 

V.  Kenstra  447,  463 

V.  Lincoln  Sav.  Bank  828 

V.  McLeod  189.  191 

V.  Moat  67 

V.  Morrison  432 


Morrison  v.  Roehl 

195 

431 

Morriss  v.  Blackman 

586 

Morrow  v.  Peyton 

426 

Morse  v.  Crofoot 

600 

V.  Hill 

195 

229 

V.  Mason 

680 

V.  Morse 

82- 

V.  Natick 

706 

Morse  v.  Royal          195, 

197, 

209, 

228, 

428,  861,  869 

Mortgage  Co.  v.  Clowney  195 

Mortimer  v.  Ireland    294,  340,  494,  495 

V.  Moffatt  541 

V.  Picton  455 

V.  Shortall  226 

V.  Watts  508,  532 

Mortimore  v.  Mortimore  460 

Mortlock  V.  Buller    169,  176,  498,  507, 

539,  770,  775,  777,  779,  781,  784, 

787 

Morton  v.  Adams  458.  910 

V.  Barrett  305.  891,  894,  910 

V.  McDevitt  864 

V.  Naylor  68 

V.  Southgate  511 

V.  Tewart  82,  83 

Morton's  Estate  476  a 

Morton's  Estate,  In  re     891,  900,  902, 

928 

Morton  and  Hallett,  In  re  494 

Morton  Trust  Co.  v.  Sands  381 

Morton's  Guardian  t.  Morton  386 

Morville  v.  Fowler  412,  701 

Mory  V.  Michael  32,  511  c 

Mosby  V.  Steele  37 

Moseley  v.  Eastern  R.  R.  Co.  556 

V.  Hankinson  874 

V.  Marshal  329,  539,  540,  547 

V.  Moseley  249,  257 

Mosely  v.  Garrett  232 

V.  Norman  815  b 

Mosely  &  Eley  v.  Norman  815  b 

Moser  v.  Lebenguth  184 

Moses  V.  Levi  419,  422,  423 

V.  Murgatroyd     98,  343,  414,  593, 

594.  602 #.  891 

Moshier  v.  Knox  College  246  a 

Mosley  v.  Ward  900 

Moss  V.  Bainbridge  202 

V.  McCall  647 

Moss's  Appeal  545 

Moth  V.  Atwood  183.  187.  188 

Mott  V.  Buxton  305 

V.  Clark  218.  222 

V.  Harrington  202 

Moulton  V.  Bartlett  592.  594 

V.  De  M'Carty  614 

V.  Haley  143.  676 

Moultrie  v.  Wright  127.  166 

Mounce  v.  Byars  232.  239 

Mount,  Matter  of  99.  377 

V.  Tuttle  72.  741 

Mountford,  Ex  parte  613.  617 

V.  Scott  222 

Mousley  v.  Carr  468.  901 

Movan  v.  Hays  76.  79.  165.  226 

Mower  v.  Hanford  590 

V.  Sanford  556 


INDEX    TO    CASES    CITED. 
[References  are  to  sectioos.] 


CXVll 


Moyle  r.  Moyle         269,  417,  443,  462, 

563 

Moyse  v.  Cohn  886 

V.  Gyles  136 

MuchoUand  v.  Belfast  770 

Muckenfoss  v.  Heath  918 

Muckleston  v.  Brown     84,  90,  93,  151, 

160,  165.  216 

V.  Tuller  262,  416,  419,  438. 

440 

Mudgc  V.  Brown  672 

V.  Parker  546,  548 

Muffett,  In  re  549,  554 

Muggeridge's  Trusts  388,  555 

Muir  V.  Cross  232 

V.  Sohenck  438 

V.  Trustees  182 

Mulcahy  v.  Kennedy  861 

Muldrow  V.  Fox  499 

Mulford  V.  Shurk  591 

V.  Winch  205 

Mulhallen  v.  Marum  200,  229,  230 

MulhoUand  v.  York  171 

Mulky  V.  Karsell  238 

MuUanny  v.  Nangle  262,  273,  275, 

277,  286 

Mullen  V.  Bowman  152 

V.  Doyle  195 

V.  Walton  864 

Muller,  In  re  446,  468 

Mulligan,  In  re  828 

)'.  Mitchell  745 

Mullins  V.  Mullins  82 

Mulrein  v.  Smillie  815  6 

Mulvauey  v.  Dillon  196 

Mumford  v.  Murray         418,  419.  463, 

468.  594,  626,  632,  645 

Mumma  v.  Mumma  54,  143,  146 

V.  Potomac  Co.  242 

Mumper's  Appeal  891 

Munch  V.  Cockerell  404,  417,  454,  463, 

467,  847.  851,  875,  878,  881,  923 

Mundcn  v.  Bailey  815  « 

Mundine  v.  Pitts  218 

Mundy  v.  Howe  612 

)'.  Mundy  871 

V.  Vatticr  598,  602  o 

Munnerlyn  v.  Augusta  S.  Bank       122, 

828 

Munro  v.  Collins  128 

Munroe  v.  Dewey  386  a 

Munsou  V.  S.  G.  &  C.  R.  R.  Co.       129 

Muutorff  r.  Muntorff  891 

March  v.  Smith  540,  554 

Murchie  v.  Wentworth  596 

Murdoch,  Appellant  742 

V.  Elliot  276 

V.  Finney  438 

V.  Hughes  863.  865 

Murdoch's  Case  199 

Murdock  r.  Johnson  783 

Murless  v.  Franklin  126,  143.  145. 

146.  147 

Murphey  v.  Cook  24S 

Murphy,  In  re  555 

V.  Abraham  96,  388,  555 

V.  Bell  590 

V.  Bright  685 


Murphy  v.  Carlin 

112 

V.  Dallam 

748 

V.  Delano 

386  fc 

V.  Doyle 

460 

V.  Farmers',  &o.  Bank 

122,  217, 

800 

V.  Grice 

626 

V.  Hubert 

75 

V.  Moore 

330 

V.  Nathans 

144 

V.  Peabody 

126,  139 

I".  Plankington  Bank 

816  6 

Murphy's  Estate 

712 

Murray,  Matter  of 

377 

V.  Able 

238 

■c.  Addenbrook 

380,  381 

V.  Ballou 

217,  221 

V.  Barlee  657,  668,  662,  663 

V.  Blatchford  425 

V.  Coster  228 

V.  Dehon  503 

V.  De  Rottenham  915 

V.  Elibank  626,  627,  630,  645 

V.  Feinour  459,  465,  466,  467 

V.  Glass  82,  454,  544,  545,  551 

V.  Green  386 

V.  Lylburn  836.  842 

V.  Miller  248.  748 

r.  Murphy  182 

V.  Murray  213 

j;.  Palmer  171,  187,  230 

V.  Pinkett  835 

V.  Rodman  764 

V.  Sell  126 

V.  Vanderbilt  199,  207 

Murray's  Will.  In  re  729.  748 

Murrell  v.  Cox  416.  421,  423,  809 

Murthwaite  v.  Jenkenson  305,  308 

Muscogee  Lumber  Co.  v.  Hyer     918  n 

Muse  V.  Sawyer  263 

Musham  ?>.  Musham  127 

Music  Hall  Block,  In  re  322 

Muskerry  v.  Chinnery  530 

Musselman  r.  Eshelman  205 

Mussey  v.  Mussey  863 

V.  Noyes  590 

Musson  r.  Trigg  655 

Mussoorie  Bank  v.  Raynor  112 

Musters  !'.  Wright  626 

Mustin's  Estate  448 

Mut.  Ace.  Ass'n  v.  Jacobs  828 

Mutual  Life  Ins.  Co.  v.  Armstrong  181 

V.  Everett  248 

V.  Woods  270 

Mutual  Loan  &  Banking  Co.  v. 

Haas  602  v 

Myatt  V.  St.  Helen's,  &c.  Railw.      750 

Mycrcough,  Ex  parte  617 

Myers,  Re  453,  454,  462,  464,  468 

V.  Board  of  Education  828 

V.  Jiick-son  162,  299 

V.  McBride  511  c 

V.  Myers  83,  84,  89,  133.  139, 

471,  612,  627,  837,  910 

I'.  Perigal  86 

v.  Trustees  of  Schools  275 

V.  Wade  618 

r.  Zetelie  456 


CXVlll 


Myers's  Appeal 

Estate 
Myetsky  v.  Goery 
Myler  v.  Fitzpatrick 


N. 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


206,  918 
276 
685 

246,  907 


Nab  V.  Nab  82,  84,  85,  86,  90 

Nabours  v.  McCord  195,  598 

Nace  V.  Boyer  194 

Nagle  V.  Bayler  191 

Nagle's  Estate  297,  506,  769 

Naglee  v.  Ingersoll  665 

Nail  V.  Punter  467,  849 

Nairn  v.  Majoribanks        477,  552,  913 
V.  Prowse  236 

Naldred  v.  Gilham  103 

Nance  v.  Coxe  541 

V.  Nance      _  122,  457,  460 

Nanney  v.  Martin  639 

V.  Williams  181,  182 

Nantes  v.  Corrock  189,  662,  663 

Nantz  V.  McPherson  219 

Nanz  V.  Oakley  421 

Napier  v.  Howard  627,  632,  636, 

645 
V.  Napier  626,  632,  636 

Narron  v.   Wilmington  &    W.  R. 

Co.  765 

Nash  V.  Allen  310 

V.  Coates  312 

V.  Jones  206 

V.  Minnesota  Title  Co.  177 

V.  Morely  699,  711,  712 

V.  Nash  640 

V.  Ober  560 

V.  Preston  322 

V.  Spofford  246  a 

Nashville  Trust  Co.  v.  Lannon         144 

Nathan's  Estate  276 

Nathans  v.  Morris  918 

National  Bank,  &c.  v.  Lake  Shore, 

&c.  R.  R.  Co.  242 

V.  Dulaney  598,  918,  919 

V.  EUicott  122 

V.  Insurance  Co.  122 

V.  Nashville  Tr.  Co.  386  b 

y.  Smith  790 

National  Bank  of  Commerce  v. 

Bailey  592.  594 

National  Exch.  Co.  v.  Drew  172 

National  Mechanics'  &  Traders' 

Bank  v.  Eagle  Sugar  Ref.  586 

National  Revere  Bank  v.  Morse  815  c 
National  Union  Bank  v.  Cope- 
land  590 
National  Webster  B'k  ?;.  Eldredge  284 
Nauman  v.  Weidman  706 
Naylor  v.  Arnitt        305,  307,  329,  484, 

528 

V.  Godman  378 

V.  Wynch  185,  199 

Nazareth,  &c.  v.  Lowe  239 

Neafie's  Estate  276 

Neal  V.  Black  104 

V.  Bleckley    437  a,  612,  815  b,  860 

v.  Maxwell  932 


Neale,  In  re  613 

V.  Davies  433 

V.  Haythrop  126 

V.  Neale  185 

Neally  v.  Ambrose  590 

Nearpass  v.  Newman  104 

Nebraska  Nat.  Bank  v.  Johnson       181 

Nedby  v.  Nedby  667 


Needham,  In  re 
Needler's  Case 
Needles  v.  Martin 
V.  Needles 
V.  Winchester 
Neel  V.  McElhenny 
Neel's  Estate 
Neeley  v.  Anderson 
Neely  v.  Steele 
Neeson  v.  Clarkson 
Neeves  v.  Burrage 


259 
849 
748 
188,  639 
48 
864 
547 
206 
783 
231 
474 


Neff's  Appeal  438,  441,  914,  927 

Negroes  D.  Palmer  114 

Nehawka  Bank  v.  Ingersoll  122 

Nehls  V.  Sauer  556 

Neil  V.  Kinney  232,  239 

V.  Rosenthal  235 

Neill  V.  Keese  81,  127,  138,  160 

Neilson  v.  Blight  98,  593 

V.  Cook  914 

V.  Lagow  62,  64,  312,  320 

Neimawicz  v.  Gahn  554,  667 

Neisler  v.  Pearsall  104 

Nellis  V.  Rickard  59,  99,  297 

Nelson  v.  Bridport  74 

V.  Callow  506 

V.  Cornwall  863 

V.  Davis  299,  305,  312.  357 

V.  Duncombe  915 

V.  Hagerstown  Bank  468,  869 

V.  Lee  610 

V.  McDonald  660,  661 

V.  Oldfield  182 

V.  Ratliff  104 

V.  Seaman  878 

V.  Stocker  930 

V.  Worrall  137 

Nesbitt  V.  Berridge  188 

V.  Lockman  202  n 

V.  Tredennick  129,  196,  538 

Nesmith,  In  re  468,  910 

Ness  V.  Davidson  44S 

Nestal  V.  Schmid  135,  206 

Nester  v.  Gross  207 

Nettle's  Charity,  In  re  735 

Nettleship  v.  Nettleship  665 

Nettleson  v.  Stephenson  395,  397 

Neustadt  v.  Joel  596 

Nevarre  v.  Rutton  863 

Neves  v.  Scott  359,  361,  367,  370 

Nevil  V.  Saunders  305.  310 

Nevill  V.  Nevill  119 

Neville  v.  Fortescue  451.  466 

V.  Wilkinson  171 

Nevitt  V.  Gibson  171 

y.  Woodburn  377,  910 

Nevius  V.  Nevius  70 

New  V.  Bonaker  47,  741 

V.  Jones  90  I 

V.  Nichol  526,  815  b 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


CXIX 


New  England  Tr.  Co.  v.  Eaton  547 
Newark  Meth.  Episc.  Ch.  v.  Clark  386, 

748 
Newark  Savings  Inst.,  In  re  122 

Newberg,  &c.  Co.  v.  Miller  7G1 

Newberry  v.  Blatchford  7.32 

Newburgh  v.  Bickerstaffe  871 

Newcastle  v.  Lincoln  364,  373 

Newcomb  v.  Brooks  202  b 

Newcomb's  Will,  In  re  570 

Newconibe  v.  Keteltas  528 

V.  St.  Peter's  Church  748 

V.  Williams  263,  272.  426,  574 

Newconien  v.  Hassard  658 

Newdigate  v.  Newdigate  540 

Newels  v.  Morgan  126,  149 

Newen,  In  re  297,  329 

New  England  Bank  v.  Lewis  593,  594 
New  England  M.  S.  Co.  v.  Buice  511  c 
New  England  Theosophical  Corp. 

V.  Boston  705 

Newhall,  Ex  parte  37 

V.  Wheeler  299,  312,  843 

New  Hampshire  Tr.  Co.  v.  Tag- 

gart  598 

Newill  V.  Newill  380 

Newis  V.  Topfer  181,  865 

Newland  v.  Att'y-Gen.  704 

V.  Champion  225 

Newlands  v.  Paynter  647,  648,  653 

Newlin  v.  Freeman  655,  660 

V.  Phillips  252 

Newman  v.  Barton  244 

V.  Early  143,  229 

V.  Jackson  602  i,  602  q,  602  r, 

602  aa,  762,  782 

V.  James  648 

V.  Johnson  569 

V.  Jones  849 

V.  Meek  188 

V.  Montgomery  330 

V.  Newman  860 

V.  Payne  202,  203 

V.  Warner  273,  503 

V.  Williams  574 

New  Market  v.  Smart  748 

Newmeyer's  Appeal  733 

New  Orleans  v.  McDonogh  748 

Newport  v.  Bryan  260 

V.  Cook  615,  616 

Newsonie  v.  Flowers  433,  863 

Newson  v.  BufTalow  226 

V.  Thornton  243 

New  South  B.  Co.  v.  Gann  103 

New  Statehouse,  In  re  41 

Newstead  v.  Searles  222,  367 

Newton  v.  Askew  104,  111,  821 

V.  Bennett  464,  468,  501,  901, 

902 

V.  Bronson  71,  402,  409,  779 

V.  Egmont  SS5 

D.Hunt  188,5116 

I).  Jay  96,  305,  386  a,  815  n, 

827  a 

V.  Marsden  514 

V.  Metropolitan  R.  Co.  812 

V.  Pelham  84 

V.  Porter  128,  135,  211 


Newton  v.  Preston  137 

V.  Reid  652 

V.  Swazcy  84,  231 

New  York  City  (110th  St.),  Mat- 
ter of  484 
New  York,  &c.  v.  Stillman  334 
New  York  Ins.  Co.  v.  Ely  44 
V.  Roulet  843 
New  York  Life  Ins.  Co.  v.  Baker  547 
New  York  Life  Ins.  &  Tr.  Co.  v. 

Cary  381 

V.  Livingston  97 

Neyland  v.  Bendy  137,  816  a 

Niblack  v.  Park  Nat.  Bank  87 

Nice's  Appeal  652 

Nicholls,  In  the  Goods  of  929 

V.  Nicholls  192 

V.  Peak  598,  794 

Nichols  V.  Allen  711 

V.  Baxter  602  v 

V.  CampbeU  264,  343 

V.  Eaton  386  a,  388 

V.  Emery  82,  97,  104 

V.  Hodges  918 

V.  Levy  386  a 

V.  McEwen  590,  918 

V.  Newark  Hospital    722,  728,  729 

V.  Nichols  212,  213 

V.  Otto  199,  602  V,  602  w 

V.  Palmer  672 

V.  Park  165,  213,  324 

V.  Postlethwaite  570 

V.  Rogers  276 

Nichols,  Appellant  467,  849 

Nicholson  v.  Faulkiner  888 

V.  Field  290 

V.  Halsey  347 

V.  Leavitt  686,  590,  591 

V.  Tutin  593 

Nickell  V.  Handley  305,  386  a,  652 

Nickels  v.  Philips  276 

Nickerson  v.  Buck  891 

V.  Van  Horn  386  a,  386  h 

Nickolls  V.  Gould  188 

Nickols  V.  Thornton  126 

Nickolson  v.  Knowles  246 

Nicoll  V.  Miller  259 

V.  Mumford  593,  594 

V.  Ogden  259 

V.  Walworth  17,  312,  318,  328 

Nicolson  V.  Wordsworth  270,  271,  273, 

503 

Nicll  V.  Morley  35 

Nightingale  v.  Burrell  380 

V.  Goulbourn    41,  47,  61,  704,  720 

V.  Harris  592 

V.  Hidden  299.  324,  047 

ir.  Lawson  533 

V.  Lockman  639 

V.  Nightingale  104 

Niles,  Re  848,  849 

V.  Cooper  223 

V.  Mason  391 

V.  Mathusa  438,  926 

V.  Stevens  402.  499 

Nilson's  Estate  694,  729,  741,  748 

Nimmo  v.  Davis  188 

Nims  V.  Bigelow  684 


cxx 


INDEX   TO    CASES    CITED. 

[Referencea  are  to  sections.] 


Niolon  V.  Douglas 
V.  McDonald 
Nisbett  V.  Murray 
Niver  v.  Crane 
Nix  V.  Bradley 
Nixon  V.  Rose 
Nixon's  Appeal 
Noad  V.  Backhouse 
Noble  V.  Andrews 


585.  592 

910,  918 

903  a 

126,  133 

646,  650,  655 

647,  660 

126,  133,  137 

818 

317,  357,  358, 

841 

V.  Brett  932 

V.  Edwards  780 

V.  Hahnemann  Hosp.         710,  747 

V.  Jackson  900,  902,  912 

V.  McFarland  676 

V.  Meymott  267,  291,  884 

V.  Morris  82 

Noble's  Estate  462 

Nobles  V.  Hogg  453 

Noe  V.  Roll  134 

Noel  V.  Bewley  349,  351,  355 

V.  Henley       '  550,  571 

V.  Jevon  322 

V.  Jones  119 

V.  Robinson  244 

Noke  V.  Seppings  826,  827 

Nolen's  Appeal  639,  642 

Nolte  V.  Meyer  729,  748 

Nonotuck  Silk  Co.  v.  Flanders         827 

Norbury  v.  Calbeck  900 

V.  Norbury  457,  604 

Norcum  v.  D'Oench  511,  784 

Norfolk's  Case  737 

Norling  v.  Allee  437  a 

Norman  v.  Cunningham  843,  844, 

847 

V.  Hill  602  p,  602  aa 

Norris  v.  Chambers  71 

V.  Clymer  610 

V.  Frazer  181 

V.  Haggin  861 

V.  Harrison  544,  545 

V.  He  223 

V.  Johnston  555 

V.  Le  Neve  206,  228,  869 

V.  Norris  894,  897 

V.  Thompson      694,  711,  720,  765, 

920 

V.  Woods  768 

V.  Wright  457,  460,  889 

Norris's  Appeal         229,  464,  470,  471. 

901,  918 

North  V.  Barnum  863 

V.  Crompton  150,  151 

V.  Curtis  609 

V.  Pardon  154 

V.  Philbrook  312,  320 

V.  Turner  593 

North  Adams  Univ.  Soc.  v.  Fitch  705, 

748 
North  Am.  Tr.  Co.  v.  Chappell  779 
Northage,  In  re  545 

North  Amer.  Coal  Co.  v.  Dyett       554 
North    Am.    Land,    etc.    Co.    v. 

Watkins  863 

North  Baltimore.  &c.  Ass.  v.  Cald- 
well 195 
North  British  Ins.  Co.  v.  Lloyd        179 


North  Carolina  R.  R.  Co.  v.  Wil- 
son 853 
No.  Dak.  Elev.  Co.  v.  Clark              828 
Northampton  Bank  v.  Ballitt  438 
V.  Crafts  873 
V.  Whiting  299 
North  Hempstead  v.  Hempstead        43 
Northcroft  v.  Martin  172 
Northen  v.  Carnegie  152 
Northern  Central  R.  R.  Co.  v. 

Keighton  918 

Northrop  v.  Hale  82 

Northwestern  Land  Ass'no.  Grady  207 

Norton  v.  Bassett  865 

V.  Brink  133 

V.  Frecker  871 

V.  Gillison  918 

V.  Ladd  863 

V.  Leonard  299,  302,  305 

V.  Norton  312 

V.  Phelps  815  b 

V.  Ray  843 

V.  Turvill  657,  663,  668,  863 

Norton's  Estate  471 

Norvell  v.  Johnson  232 

Norway  v.  Norway  270,  271.  898 

Norway  S.  Bank  v.  Merriam       82,  95, 

90 

Norwich  Yarn  Co.  907 

Nostrand  v.  Atwood  592 

Nottage.  In  re  705 

Nottige  V.  Prince  189,  192 

Nottingham  v.  Jennings  380 

Nougues  V.  Newlands  860 

Nourse  v.  Finch  150 

V.  Merriam  738,  748 

Nowland  v.  Nelligan  112 

Noyes  v.  Blakeman  660.  680 

V.  Newburyport  S.  Inst'n      82.  96 

V.  Stone  546,  552 

V.  TurnbuU  437  a 

Nugent  V.  Gifford      809.  810,  811,  815 

V.  Vetzera  603 

Numsen  v.  Lyon  309 

Nunn  V.  Graham  680 

V.  Harvey  618 

V.  O'Brien  112 

V.  Wilsmore  600 

Nurse  v.  Yerwarth  347 

Nurton  v.  Nurton  809 

Nutt  V.  Morse  82 

Nyce's  Appeal  418,  453,  456,  467 

Estate  459,  914 

Nyssen  v.  Gretton  570 


Oakes  v.  Strachay  117,  449 

Oakland  Bank  of  Savings  v.  Wil- 
cox 209 
Oakley,  In  re  428 
Gates  V.  Cooke  312,  313,  314 
Oatman  v.  Barney  346 
Oatway,  In  re  464,  828 
O'Bannon  v.  Musselman  511 
O'Bear  Jewelry  Co.  v.  Volfer  242 
Obee  V.  Bishop                                     850 


INDEX    TO    CASES    CITED. 
[References  are  to  sectionfj.] 


CXXl 


O'Beirne  v.  Allegheny,  etc.  R.  Co.   760 

Oberlunder  v.  Butcher  223 

Oberruiiler  v.  Wylie  132 

Obert  V.  Uordine  17,  328 

Oberthier  v.  Strand  126 

O'Brien  v.  Fleckstein  815  c 

V.  Flint  252,  640,  768 

V.  GricTson  928 

V.  Jackson  815  b 

V.  Lewis  202 

Petitioner  99 

O'Cain  v.  O'Cain  476  a 

O'Callaghan  v.  Cooper      517,  518.  901 

Ocean  Beach    Ass'n    v.    Trenton 

Trust,  etc.  Co.  238 
Ocean  Nat.  Bank  v.  Alcott  142 
Ochiltree  v.  Wright  415,  417,  421 
Ockeston  v.  Heap  340,  494.  495 
O'Connell  v.  O'Callaghan  890 
O'Connor  v.  Decker  443 
V.  Haslam  601 
V.  Spaight  871 
Odd  Fellows  Hall  Ass'n  v.  McAl- 
lister 437  a 
Oddie  V.  Brown  396,  397 
Odell  V.  Moss  171,  181,  865 
V.  Odell       384,  399,  687,  724,  737. 
738,  748 
Odell's  Estate  484 
Oden  1'.  Wiudley  918 
O'Donnell  v.  White  132 
Oeslager  v.  Fischer  458 
O'Farrall,  Ex  parte  632 
O'Ferrall  v.  O'Ferrall  533 
Officer  V.  Officer  122 
Offley  V.  Offley  581 
Offutt  V.  Jones  282 
V.  Devine's  Ex'r  82,  539 
O' Flaherty  v.  Browne  82 
Ogden  V.  Astor  178 
V.  Kip  819 
V.  Larabee  82 
V.  McHugh  122 
V.  McLane                381,  392.  476  a 
V.  Murray  207,  918 
Ogden  V.  Ogden  856 
Ogdcn,  Petitioner  112 
Ogden's  Appeal               305,  310  a,  652 
Oglandcr  v.  Oglander  277,  287 
O'Hara,  In  re  159,  181,  276 
V.  Dudley  171 
V.  O'Neill  82.  135.  137 
O'Herlihy  v.  Hedges  427 
O'Hcrron  v.  Gray  225.  800 
Ohio  Oil  Co.  ».  Daughetee  540 
Oke  V.  Heath  160 
Okeden  v.  Okeden  581 
O'Kecfe  v.  Calthorpe  277,  283,  284 
O'Kelly  V.  Glenny  862 
O'Kinson  v.  Patterson  299 
Olcott  ?'.  Baldwin  918,  919 
i'.  Tioga  R.  R.  Co.  199 
V.  Topo  312 
V.  Bynum  132 
Old  Dominion,  etc.  Co.  v.  Bigelow     207 
Oldfiold,  In  re  112,  115 
Oldham  v.  Jones  206 
V.  Litchfield  181,  226 


Oldham  v.  Sale 

82, 

322 

Oliphant  v.  Hendrie 

741 

Olinger  v.  Shultz 

137. 

144 

Olive  V.  Dougherty 

137 

V.  Westcrnian 

458 

Oliver.  He 

308, 

548. 

551 

V.  Courts 

210, 

419, 

770 

V.  Hinton 

223 

V.  Ins.  Co. 

186 

V.  Oliver 

226 

V.  Piatt       127,  217,  836,  842,  843, 

844.  863 

Oliver's  Estate  545 

Olliffe  V.  Wells  159.  181.  687 

Olmetead,  In  re  280 

V.  Herrick  590 

v.  Vance  242 

Olney  v.  Balch  252,  254,  383 

Olscn  V.  Youngerman     386  a,  388,  920 

Olson  V.  Lamb  202  b,  906,  919 

O'Malley  v.  Gerth  328,  437  a 

Ommanny  v.  Butcher        253,  712,  748 

Onasch  v.  Zinkel  132 

Oneal  v.  Mead  564 

O'Neall  V.  Herbert  425 

O'Neil  V.  Greenwood  96 

V.  Hamilton  215 

V.  Vanderburg  782 

O'Neill  V.  Donnell  918 

V.  Henderson  216 

V.  Lucas  381,  397 

V.  Wilcox  223 

Onslow  V.  Corrie  536 

V.  Londesborough  786 

V.  Wallis  167.  327,  734 

Ontario  Bank  v.  Mumford  58 

Opinion  of  Justices  757 

Oppenheimer  v.  First  Nat.  Bank        82 

Orange  v.  Pickford  611  c 

Orb  V.  Coapstick  816  c 

Orbey  v.  Mohun  530 

Orcutt  V.  Gould  828 

Ord  V.  Noel  409,  602  ee,  770.  774. 

779,  781,  787 

V.  White  831 

O'Reilly  v.  Alderson  276,  284,  292, 

297 

Orford  i;.  Churchill  903  a 

Orleans  v.  Chatham  82 

Orlebar  v.  Fletcher  231 

Ormiston  v.  Olcott  452 

Ormond  v.  Hutchinson      178,  185,  863 

Ormsby,  In  re  904,  910 

V.  Dumesnil  251 

V.  Tarascon        602  o,  602  p.  602  g, 

783 

O'Rorke  v.  Bolingbroke  188 

O'Rourke  v.  Beard  82 

Orr  1'.  Hodgson  55 

V.  Newton  261,  440 

V.  Rode  790 

V.  Yates  476  a 

Orrett  v.  Corser  440 

Orrock  r.  Biimey  812 

Orth  V.  Orth  181 

Orthwein  r.  Thomas  66 

Osborn,  In  re  422 

V.  Brown  513 


cxxu 


INDEX    TO    CASES    CITED. 
IReferencea  are  to  sections.] 


Osborn  v.  Byrne 

122 

Owsley  V.  Eads'  Trustee 

764 

V.  Glasscock 

223 

Owson  V.  Cown 

172 

V.  Morgan 

627,  633 

Oxenden  v.  Coinpton 

605,  611 

Osborne  v.  Fuller 

591 

V.  Oxenden 

634,  637 

V.  Gordon 

503 

Oxford  V.  Richardson 

871 

, V. 

280,  282 

Oxley,  Ex  parte 

388,  555 

V.  Rowlett 

1 

340,  494 

Osburn  v.  Tallows 

873 

Osgood  V.  Bliss 

511  b 

P. 

V.  Franklin 

187, 

308,  770 

V.  Lovering 

251,  371 

Pabst  V.  Goodrich               452, 

460,  545 

V.  Rogers 

722, 

728,  729 

Pace  V.  Cawood 

624 

V.  Strode 

367 

V.  Pace 

386  a 

Osmond  v.  Fitzroy 

189,  851 

V.  Payne 

863 

Osterman  v.  Baldwin 

65.  75.  131 

V.  Pierce 

330 

Osternson  v.  Severson 

162 

Pacific  Nat'l  B'k  v.  Windram 

96. 

Ostheimer  v.  Single 

133 

386  a,  585,  671,  815  o. 

Oswald's  Appeal 

468 

827  a 

Oswell  V.  Probert 

626, 

632,  633 

Pacific  R.  Co.  V.  Ketchum 

202  6 

Otis  V.  Beckwith 

105 

Pack  V.  Shanklin 

729,  748 

V.  McLellan 

381 

Packard  v.  Kingman 

437  a 

V.  sm 

86 

V.  Marshall 

160,  315 

Ottley  V.  Gibbs 

821 

V.  0.  C.  R.  Co. 

82,  312 

V.  Gray 

792 

V.  Putnam 

82 

Otto  V.  Schlapkahl 

863 

V.  Roberts 

633 

Ottway  V.  Wing 

654 

Packer  v.  Packer 

630 

Ould  V.  Washington  Hospital  694 

Ouseley  v.  Anstruther  458,  469 

Outcalt  V.  Appleby  548 

V.  Van  Winkle  641 

Outwater  v.  Berry  602  v 

Overbagh  v.  Petrie  537 

Overseers  v.  Tayloe  699 

Overseers  of   Ecclesalt  Bierlow, 

Ex  parte  737 
Overseers  of  Poor  v.  Bank  of  Vir- 
ginia 128 
Overstreet  v.  Bates  863 
V.  Sullivan  677,  920 
Overton  v.  Bannister  53,  624,  923, 

930 

Ovey,  Re  725,  728 

V.  Ovey  455 

Owen  V.  Aprice  871 

V.  Arvis  592 

V.  Bryant  66 

V.  Delamere  454 

V.  Dickenson  658 

V.  Evans  831 

V.  Homan  178,  179,  657 

V.  Hyde  540 

V.  Owen  284 

V.  Peebles  462,  468 

V.  Reed  831 

V.  Switzer  511  c 

V.  Williams  196 

Owens  V.  Cowan's  heirs  500 

V.  Crow  520 

V.  Mission  Society  748 

V.  Mitchell  815  b 

V.  Owens  181 

V.  Walker  614 

V.  Williams  75 

Owing  V.  Mason  218 

Owing's  Case  35,  570,  576 

Ownes  I'.  Ownes          33,  66,  82,  95,  96, 

98,  162,  165,  212, 

214,  260 


V.  Wyndham  633 

Packwood  v.  Maddison  899 

Paddock  v.  Adams  147 

V.  Strobridge  179 

Paddon  v.  Richardson  267,  417,  440, 

454 

Padfield  v.  Padfield  98 

Paff  V.  Kinney  855,  863 

Page,  In  re  864 

V.  Adam  597,  795,  801,  802 

V.  Bennett  455 

V.  Booth  229,  230 

V.  Boynton  915 

V.  Broom  585,  593,  786 

V.  Cooper  768 

V.  Estes  627,  632 

V.  Holman  429,  468,  471 

V.  Leapingwell  160,  574 

V.  Lever  219 

V.  Olcott  590 

V.  Page         126,  133,  137,  139,  143 

V.  Stevens  330 

V.  Subbs  202  b 

V.  Thomas  126 

V.  Trufant  672 

V.  Way  386  6,  555 

Page's  Ex'r  v.  Holman  429,  468 

Paget,  In  re  254 

Pahlman  v.  Shumway  602  bb,  602  ff 

Paice  V.  Canterbury  150,  699,  719, 

722 

Paige  V.  Paige  127 

V.  Smith  762 

Paillon  v.  Martin  195 

Pain  t).  Farson  133 

Paine  v.  Barnes  768 

V.  Forney  728 

V.  Hall  216 

V.  Irwin  199 

V.  Miller  122 

V.  Wilcox  137 

Painter,  Ex  parte  68 


Painter  v.  Hendereon 

195 

V.  Painter 

448 

Pairo  V.  Vickery 

195 

Paisley's  Appeal 

117,  119 

Paker  v.  Simonds 

680 

Palairet  v.  Carew 

770 

Palk.  He 

343,  420 

Palmer  v.  Bate 

69 

V.  Carlisle 

873 

V.  Davis 

683 

V.  Forbes 

759 

V.  Holford 

380,  395 

V.  Jones 

847 

V.  Mitchell 

464 

V.  Scott 

846 

V.  Simmons 

112,  113 

V.  Union  Bank 

705,  736 

V.  Wakeford 

880 

V.  Wilkins 

334 

V.  Williams 

221,  788 

V.  Yarborough 

602  # 

V.  Young 

196,  538 

Palmes  c.  Danby 

611 

Palmetto  Co.  v.  Risley 

127 

Pannell  v.  Hurley 

246,  813,  907 

Pannill  v.  Coles 

321 

Papillon  V.  Voice 

359,  369 

Papin  V.  Piednoir 

409,  511  c 

Paramore  v.  Greenslade 

122 

Parchcr  v.  Daniel 

511  c 

I'ardoe  v.  Price 

751 

Parfitt  V.  Hember 

376,  383,  390 

Paris  V.  Paris 

543,  545 

Parish  of  St.  Dunstan 

V.  Beau- 

champ 

695 

Parkam  v.  McCrary 

230 

Park's  Estate 

547 

Parke  v.  Kleeber 

680 

Parke's  Charity,  In  re 

737 

Parker,  Ex  parte 

236 

V.  Bloxam 

429 

V.  Bodley 

75 

V.  Bolton 

112 

v.  Brast 

129,  210 

V.  Brooke            638, 

647,  648,  665, 

833,  834 

V.  Brown 

724 

V.  Calcroft 

242 

V.  Carter 

324 

V.  Catron 

171  ,  206 

V.  Converse        284, 

320,  653,  671, 

921 

V.  Coop 

127,  133 

V.  Crittenden 

219,  221,  222 

V.  Fearnley 

570,  571 

V.  Gillian 

225 

V.  Hall 

858 

V.  Hill 

918,  919 

V.  Johnson 

647.  912 

V.  Jones  Adm'r 

828 

V.  Kane 

680 

V.  Kelley 

72 

V.  Kelly 

330 

V.  Logan 

137 

V.  McKenna 

195 

V.  May 

723,  748 

V.  Nichols 

299 

V.  Sears 

499 

INDEX   TO    CASES   CITED. 
[References  are  to  Bectiona.) 

Parker  v.  Seeley 


V.  Sewell 

V.  Snyder 

V.  Travers 

V.  White 
Parker's  Ex'r  v.  Moore 
Parker's  Trusts,  In  re 
Parker's  Will,  In  re 
Parkes  v.  White 


CXXllI 


498,  647,  556.  766, 
783 


237 
137 
252 
199,  521 
59 
2JC 
848 
646,  665,  667, 


669,  670,  849,  869 

Parkhill  v.  Doggett  273 

Parkhurst  v.  Van  Cortlandt  226 

Parkinson  v.  Hanbury  199 

Parkinson's  Trust  113 

Parkist  i'.  Alexander  206 

Parkman  v.  Suffolk  S.  Bank  82 


Parks  V.  Hall 

V.  No.  West.  Univ 

V.  Parks 

V.  Satterthwaite 

V.  Worthington 
Parmenter  v.  Walker 
Parmlec  v.  Sloan 
Parnell  v.  Kingston 

V.  Lyon 
Parnham  v.  Hurst 
Parr,  In  re 
Parratt  v.  Hartsuff 
Parris  v.  Cobb 
Parrish  v.  Parrish 

■  V.  Rhodes 
Parrott  v.  Palmer 

V.  Pawlett 

V.  Sweetland 

V.  Treby 
Parry  v.  Warrington 

V.  Wright 
Parshall's  Appeal 
Parson  v.  Snook 
Parsons  v.  Baker 

V.  Boyd 

V.  Clark 

V.  Dunne 

V.  Hayward 

V.  Jones 

V.  Jury 

V.  Lyman 

V.  Parsons 

V.  Phelan 

V.  Winslow 


Partington,  Re 

V.  Reynolds 
Partridge  v.  Havens 

V.  iSlcsscr 

a'.  Pawlett 

V.  Stoeker 

V.  Walker 
Paschall  v.  Acklin 

V.  Hinderer 
Pascoag  Bank  v.  Hunt 
Pascoe  V.  Swan 
Passingham  v.  Sherborne 
Patching  v.  Barnett 
Patrick,  Re 

V.  Patrick 

V.  Stark 


226 

710,  747 

298,  306 

864 

602  » 

602  V,  602  w 

137 

100,  101,  162 

513,  517 

345 

477,  552 

661 

863 

189,  322 

149 

871 

694,  724 

235,  236 

900 

462,  508,  550 

347 

209,  427 

385 

112 

330,  414,  602  m 

596 

630 

430 

275 

218 

262,  281 

629,  639,  641 

206 

468,  516,  647,  552, 

556  a,  817 

441 

890 

126,  143 

212,  691 

136 

660 

693 

694,  737,  748 

146,  229 


128,  135 

871,  872 

277,  297 

377,  381 

438 

918 

865 


CXXIV 


INDEX    TO    CASES    CITED. 
[Referencea  are  to  sections. ] 


Patten  v.  Bond  828 

V.  Herring  386  a 

V.  Pearson  199,  602  v 

V.  Warner  181,  855,  865 

Pattenden  v.  Hobson  771,  890 

Patterson  v.  Devlin  541,  546,  547 

V.  J'lanagan  681 

V.  Hewitt  855 

T.  High  546 

V.  Johnson  260,  554 

V.  Lanning  510,  511 

V.  Linder  232 

V.  Mills  86,  347 

V.  Murphy  82,  86,  96,  104 

V.  Rabb  831 

V.  Scott  569,  573 

V.  Vivian  548 

Patterson's  Appeal  195 

Patterson    Gen.    Hosp.    Ass'n    v. 

Blauvelt  570 

Pattison  v.  Hawksworth  866 

Patton  -B.  Beecher  181 

V.  Chamberlain  82 

V.  Merchants'  Bank  662,  668 

V.  Moore  220,  221 

V.  Randall  501 

V.  Thompson  428 

Paul  V.  Chouteau  126 

V.  Compton  112,  116 

V.  Draper  122,  828 

V.  Fulton  82,  221 

V.  Heweston  511  6 

V.  Squibb  205 

V.  Wilkins  231 

Paules  V.  Dilley  275 

Paulet  V.  Delavel  679 

Paulus  V.  Latta  828 

Pauly  V.  State  Loan  &  T.  Co.       437  a, 

910 
Paup  V.  Mingo  94 
Pavey  v.  American  Ins.  Co.  76 
Pawcey  v.  Bowen  529 
Pawlett  V.  Att.-Gen.  40,  217,  325 
V.  Clark  743 
Paxton  V.  Paxton  252 
V.  Potts  569,  570 
Payne,  Ex  parte  112,  116 
V.  Atterbury  231 
V.  Ballard  863 
V.  Collier  560,  884 
V.  Compton  828 
V.  Little  665,  894 
V.  Low  613 
V.  McClure  Lodge  133 
V.  Parker  876 
V.  Rogers  330 
V.  Sale  312,  317 
Payne's  Case  694 
Payton  v.  Almy  93,  97,  159 
V.  McPhaul           199,  602  v,  602  iv 
Peabody,  In  re  144,  148 
V.  Eastern  Meth.  Soc.  730 
V.  Tarbell  126,  137 
Peach  Orchard  Coal  Co.  d.  Wood- 
ward 70,  71,  878 
Peachman  v.  Daw  827 
Peacock  v.  Black  228 
V.  Evans  187,  188 


Peacock  v.  Monk      654,  655,  656,  657. 

665 

V.  Pembroke  640,  642 

V.  Tompkins  591 

Peacock's  Trusts,  In  re                      647 

Peak  V.  EUicott  122 

Peake,  Ex  parte  236,  239 

V.  Ledger  884 

V.  Penlington  375,  767 

Pearce  v.  Bryant  Coal  Co.        482,  520 

V.  Crutchfield  636 

V.  Dyes.-j  141 

V.  Gamble  197,  202  b 

V.  Gardner  499,  771,  783 

V.  Loman  515 

V.  McClenaghan  312 

V.  Newlyn  230,  828 

V.  Olney  72 

V.  Pearce  265,  274,  288,  846 

V.  Slocombe  597,  599,  600 

Peard  v.  Kekewich  376 

Pearle  v.  McDowell  35 

Pearly  v.  Smith  556 

Pearse  v.  Baron  628 

V.  Green  821 

V.  Hewitt  877 

Pearson  v.  Amicable  OflBce                 101 

V.  Bank  of  England  242 

V.  Belchier  869 

V.  Benson  202 

V.  Crosby  592 

V.  East  135,  172 

V.  Haydel  828 

V.  Jamison  402,  408,  779 

V.  Morgan  171 

V.  Pearson  79,  903  a 

V.  Pulley  855,  862 

V.  Rockhill  585,  591,  594 

V.  Treadwell  855 

V.  Wartman  570 

Peary  v.  Ellis  858 

Pease  v.  Davis  358 

V.  Pilot  Knob  Co.  511  c 

Peat  V.  Crane  455 

Peatfield  v.  Benn  293,  297 

Peay  v.  Peay  324 

Pechel  V.  Fowler  539,  770,  782,  816 

Peck  V.  Brown  521 

V.  Hendershott  678 

V.  Peck  602  ee 

V.  Scofield  100 

V.  Sherwood  554 

V.  W^alton  676 

V.  Whiting  591 

Peckham  v.  Newton  452,  459,  465 

V.  Taylor  86,  100 

Pedigo's  Ex'r  v.  Botts  252 

Peebles  v.  Reading  134,  135,  137, 

141,  172,  217,  228 

Peek  V.  Henderson  765 

Peeple's  Appeal  262 

Peer  v.  Peer  147,  148 

Peercy  v.  Roberts  386,  555 

Peers  v.  Ceeley  910,  927 

Peiffer  v.  Lytle  137 

Peillow  V.  Brooking  671 

Peirce  v.  Burroughs  541,  545,  554 

V.  McKeehan  137 


Pcirsol  V.  Roop 
Pelhiim  V.  Anderson 
Pell  V.  Ball 

V.  Cole 

V.  De  Winton 

V.  Mercer 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.) 


254.  784 
699 
900 
(i.Sl 
476,  792,  H06 


cxxv 


Pelley  v.  Bascombe 
Pells  V.  Brown 
Pell  J'  V.  Maddin 
Pcmber  v.  Knighton 

V.  Mathers 
Pemhcrton  v.  McGill 

V.  Johnson 


694,  712,  722,  723 
728,  729,  748 


863 
379 
126 
701 
226 
669 
686 


Pemberton  B'ld'g,  etc.,  Ass'n    v. 

Adams  624 

Pembroke  v.  Allenstown  126 

Pence  v.  Force  863,  864 

Pendleton  v.  Fay  225,  810,  811 

V.  Patrick  171,  181 

Penfield  v.  Public  Adm'r  98 

V.  Skinner  748 

V.  Sumner  710 

V.  Tower  72,  391,  448 

Penfold  V.  Bouch  157,  520,  900 

V.  Mould  97 

Peninsular  Sav.  Bank  v.  Wineman     82 

Penn  v.  Fogler  245,  260,  264,  454, 

456,  846 

V.  Lord  Baltimore         40,  71,  172, 

325 

Penne  v.  Peacock  489 

Pennell  v.  Deffell  443,  463,  837 

V.  Ennis  96 

V.  Home  869 

Pennell's  Appeal  910,  918 

Penney  v.  Avison  471 

Penn-Gaskell's  Estate  547,  918 

Penniman  v,  Sanderson  785 

Pennington  v.  Beechey  219 

V.  Buckley  701,  903  a 

V.  Giddington  109 

V.  Metropolitan  Museum  477, 

610,  764 

V.  Smith  70,  71,  328,  878 

Pennock  v.  Coe  68,  759 

Pennock's  Appeal  195,  205,  428 

Estate  113,  119 

Pennoyer  v.  Shelden  765 

V.  Wadhams  694,  748 

Penn.  Ins.  Co.  v.  Austin  768,  809 

V.  Bauerle  277 

Penn.  Title,  &c.  Co.  v.  Meyer  122,  828 

Penny  v.  Allen  8,  869,  871 

V.  Cook  781,  785 

V.  Davis  259,  261 

V.  Penny  877 

V.  Turner     248,  251,  255,  258,  714 

Pennypackcr's  Appeal  471 

Penobscot  R.  R.  Co.  v.  Mayo  843,  923 

Penrhyn  v.  Hughes  554 

Pensonneau  v.  Bleakley  218 

Penstred  v.  Payer  701 

Pentland  v.  Stokes  621,  858 

Pentz  V.  Simonson  685 

People  V.  Abbott  437  a 

V.  Chicago  Gas  Trust  Co.  21 

V.  Cogswell  700,  748 


People  V.  Donohoe 

59,  277 

V.  Everest 

855 

V.  Houghtaling 

245 

V.  Janscn 

210 

V.  Kendall 

170 

V.  Merchants'  Bank 

195 

V.  Morton 

341 

V.  Moores 

33 

V.  North  River  Sugar  Ref.  Co.    21 
V.  Norton  275 

V.  O.  B.  of  S.  B.  B.  Co.  195 

V.  Powers  82,  712,  729,  748 

V.  Steele  734,  748 

V.  Utica  Ins.  Col  44 

V.  Webster  49 

People's  Loan  &   Exch.   Bank  v. 

Garlington  307,  312,  315 

People's  Sav.  Bank  v.  Bates  815  c 

V.  Webb  82,  90 

People's  Trust  Co.  v.  Flynn  391 

Pepke  V.  Grace  Hospital  747 

Pepper  v.  Tuckey  277 

Peppercorn  v.  Wayman  270,  273 

Peralta  v.  Castro  84 

Percy  v.  Milladon  207 

Perfect  v.  Lane  188 

Perham  v.  Randolph  172 

Perin  v.  Gary       45,  697,  724,  737,  748 
Ferine  v.  Swaine  654 

Perkins,  In  re  248,  254,  511  a 

V.  Boynton  468 

V.  Burlington  Land,  etc.  Co.    299, 

305 
V.  Cartwell  855,  863 

V.  Cottrell  676 

V.  Elliott  660 

V.  Fisher  381 

V.  Kershaw  910 

V.  Lewis  262,  263,  281 

V.  McGavock  268,  274 

V.  Moore  262,  263 

V.  Nichols  146,  148 

V.  Perkins  836 

V.  Pritchard  752 

V.  Westcoat  613,  615 

Perkins's  Appeal  432,  918,  919 

Pcrkinsou  v.  Hanna  221 

Perrin  v.  Lepper        429,  430,  468,  471, 

877 
V.  Lyon  515 

V.  McMicken  43 

Perrine  v.  Applegate  892 

V.  Newell  907,  910 

Perrins  v.  Bellamy  848 

Perry,  Goods  of  264 

V.  Boilcau  647 

V.  Craig  229,  230 

V.  Hackney  358 

V.  Head  126 

V.  House  of  Refuge  747 

V.  Knott  848,  874,  877,  882 

V.  McEwen  733 

V.  McHcnry  132 

V.  Oerniun  815  c 

V.  Pearson  226 

V.  Perry  52 

V.  Phelips  841 

V.  Roberta  286  6 


CXXVl 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Perry  v.  Shipway  413 

Perry's  Almshouses,  In  re  705 

Perry  Herrick  v.  Attwood  108 

Perryclear  v.  Jacobs  628,  632 

Persch  v.  Quiggle  128,  206,  851 

Person  v.  Fort  864 

V.  Warren  56 

Personeau  v.  Personeau  466 

Persons  v.  Persons  147 

Persse  v.  Persse  185 

Petch  V.  Tutin  67 

Peter  v.  Kendall  756 

Peters  v.  Bain  828 

V.  Beverly  415,  421,  499,  501, 

602  m,  765 

V.  Goodrich  186 

V.  Grote  637 

V.  Tunell  235 

Petersham  v.  Tash  243 

Peterson  v.  Boswell  134,  181 

V.  Grover  226 

V.  Phila.  Mort.  Co.  223 

Peterson's  Appeal  499 

Peti.  of  Baptist  Church  476  a,  928 

Petit  V.  Smith  17,  150 

Petit's  Appeal  618 

Peto  V.  Gardner  605 

Petre,  Ex  parte  613,  614 

V.  Espinasse  104 

V.  Petre  614 

Petrie  v.  Badenoch  195 

V.  Clark  225,  809,  812,  814 

Petriken  v.  Davis  593 

Pettee  v.  Peppard  440 

Pettibone  v.  Perkins  602  v 

Pettingill  v.  Pettingill  262,  559 

Pettiward  v.  Prescott  872 

Pettus  V.  Clawson  468 

V.  McKinney  324 

Petty  V.  Booth  648 

V.  Petty  213 

V.  Sty  ward  136 

Peynado  v.  Peynado  43,  70 

Peyton  v.  Alcorn  610 

J).  Bury  344,414,505,511, 

518,  519 

V.  Enos  205 

V.  McDowell  891 

V.  Rawlins  191 

V.  Smith  463,  468,  918 

Phalen  v.  Clarke  230 

Pharis  v.  Leachman  841,  877 

Phayre  v.  Perce  217,  828 

Pfefferle  v.  Herr  276,  615,  618 

Phelps,  Ex  parte  275 

V.  Conover  237 

V.  Harris  769 

V.  Phelps     165,  213,  324,  748,  890 

V.  Pond  396 

V.  Seeley  82,  137 

Phen6,  Re  929 

V.  GiUon  245,  909 

Philadelphia,  Matter  of  529 

V.  Fox  45,  710,  743,  748 

V.  Girard  45,  384,  396,  399, 

724,  728,  738,  748 

V.  Wills  748 

Philanthropic  Society  v.  Kemp         573 


Philbin  J).  Thurn  262,263,511c 

Philbrooke  v.  Delano  162,  232,  233 

Philippo  V.  Munnings       263,  574,  827, 

863 

Philips,  In  re  397 

V.  Brydges  8,  13,  347 

V.  Crammond       64,  126,  127,  131, 

139 

Phillips,  Ex  parte  412,  605,  611 

V.  Bank  of  Lewiston  438 

V.  Belden  229,  230 

V.  Buckingham  883 

V.  Bucks  172,  174 

V.  Burton  467,  849,  919 

V.  Bury  742,  743 

V.  Bustard  918 

V.  Cayley  511  c 

V.  Eastwood  487 

V.  Edwards  778 

V.  Everard  786 

V.  Ferguson  448 

V.  Garth  250,  257 

V.  Graves  655 

V.  Gutteridge  576 

V.  Hardenburg  171,  172,  206 

V.  Harrow  392,  700 

V.  Heldt  391 

V.  Hessell  630,  632 

V.  James  361 

V.  Medbury  514 

V.  Moore  191 

V.  Mullings  104 

V.  Paget  624 

V.  Phillips  112,  151,  195,  226, 

244,  444,  538,  930 

V.  Pike  254 

V.  Railroad  710 

V.  Reeder  196,  538 

V.  Rogers  855 

V.  Ross  284 

V.  Sargent  647 

V.  Saunderson  237 

V.  Sherman  77 

V.  South  Park  Com'rs  76,  82 

V.  Swank  312 

V.  Swenson  139 

V.  Thompson  918 

V.  Ward  328 

V.  Winslow  759 

V.  Wood  252,  540 

Phillips's  Estate  438,  926 

Phillips  Academy  v.  King  42,  44 

Phillipson  v.  Gatty  457,  462,  467, 

469,  870,  881 

V.  Kerry  104 

Phillpots  V.  Phillpots  131 

Philpot  V.  Penn  137,  139 

V.  St.  George  Hospital  709 

Phipps  V.  Annesley  571 

D.  Kelynge  381,  390,  396 

Phoenix  v.  Livingston  918 

Phoenix  Bank  v.  Sullivan  593 

Phoenix  Life  Assurance  Co.,  In  re    331 

Phyfe  V.  Ward  well  538 

Piatt  V.  Oliver  127,  206,  881,  882 

V.  Vattier       38,  228,  230,  855,  869 

Pichoir,  Estate  of  99 

Pickard  v,  Anderson  453 


INDEX    TO    CASES    CITED. 
[Referenoea  are  to  sectiona.] 


Pickela  v.  McPherson 

V.  Wood 
Pickorell  v.  Thompson 
Pickering  v.  Coatcs 
V.  De  Rochemont 
V.  Pickering        185, 

V.  Shotwell    46,  700, 

V.  Staniford 

V.  Vowlos  196, 

Pickett  V.  Everett 

V.  Jones 

V.  Loggan  187, 

Pickler  v.  Pickler 
Pickslock  V.  Lyster 
Pickup  V.  Atkinson 
Picquet  v.  Swan 
Pidcock  V.  Bishop 
Pidgeley  v.  Pidgeley 
Pierce  v.  Bowker 

V.  Brady 

V.  Brewster 

V.  Emery 

V.  Fort 

V.  Gates 

V.  Hower 

V.  McKeehan 

V.  Pierce 

V.  Perry 

V.  Robinson 

V.  Scott 

V.  Thompson 

V.  Thornley 

V.  Waring 

V.  Weaver 
Piercy,  In  re 
Pierpont  v.  Cheney 

V.  Graham 
Piersol  v.  Roop 
Pierson  v.  Armstrong 

V.  David 

V.  Garnet 

V.  Shore 

V.  Thompson 
Pieschel  v.  Paris 
Piety  V.  Stace 
Pigott  V.  Penrice 
Piggott  V.  Green 
Pike  V.  Bacon 

i>.  Baldwin 

V.  Collins 
Pilcher  v.  Flinn 

V.  Randall 

V.  Rawlins 
Pilkington  v.  Bailey 

V.  Boughey 
Pillars  V.  McConnell 
Pillot  V.  Landon 
Pillow  V.  Brown 
II.  Shannon 
Pillsbury-Washburn  F. 

Kistler 
Pilmore  v.  Hood 
Pinchain  v.  Collard 
Pine  V.  White 
Pine  St.  Soc.  v.  Weld 
Pingree  v.  CofSn 
V.  Comstock 


846 

144 

598 

387,  652,  670 

468 

450,  451,  467, 

547 

701,  730,  748 

861,  867.  869 

336,  532,  538 

639 

672,  673 

192,  230,  872 

133 

590 

451,  547 

32,  51,  277 

171,  178,  179 

511c 

465,  918 

438 

590 

757,  758,  759 

75 

239 

76 

836 

132 

863 

602  # 

789,  812 

639 

639 

200 

294 

72,  728 

614 

592,  593 

493 

299 

232,  238,  239 

112,  116,  249 

196,  605,  611 

744 

714, 729 

464,  468,  900 

248 

272 

591 

795 

639,  644 

230,  861,  807 

117 

223 

76 

112,  160 

137 

359 

166 

219 


M.  Co.  V. 


23 


82 
173 
237 
459 
737 
80,  122 
594 


Pingrey  v.  Nat.  Ins.  Co 
Pingry  v.  Washburn 
Pink  V.  De  Thuisey 
Pinkard  v.  Pinkard 
Pinkston  v.  Brewster 
Finn  v.  Downing 
Pinnell  v.  Hallett 
Pinney  v.  Fellows 


Pinnock  v.  Clough 
Pinson  v.  McGehee 
Pinston  v.  Ivey 
Pintard  v.  Goodloe 
Pipe  V.  Jordan 
Piper  V.  Hoard 
Piper's  Appeal 
Pipkin  V.  Casey 
Pisani  v.  Atty.-Gen 
Pitcairn,  In  re 
Pitcher  v.  Rigby 

V.  Toovey 
Pitchford  v.  Limer 
Pitney,  In  re 

V.  Everson 
Pitt  V.  Jackson 

V.  Pitnay 
Pitt's  Case 
Pittman  v.  Pittman 
Pittock  V.  Pittock 
Pitts  V.  Bonner 

V.  Cottingham 

V.  Edelph 

V.  James 

V.  Pelham 

V.  Pitt 

V.  R.  I.  Hospital  Tr.  Co 


CXXVll 


104 

214 

507,  508,  511 

97 

863,  867 

418,  419 

475 

79,  82.  126,  127, 

132,  139.  161.  647 

81.  133,  135 

82 

863 

239 

223 

181 

275 

814 

202 

506,  511,  548 

203 

536 

358 

547 

918 

324 

602  w 

165 

75.  81.  96 

126.  133 


848,  876 
171 
830 
701 
121 
348 
615, 
618,  619 

Pittsfield  Savings  Bank  v.  Berry      310 
Pitzel  V.  Schneider  377,  380,  392 

Planck  V.  Schermerhorn    287,  595,  598 


Planters'  Bank  v.  Prater 

828 

Plass  V.  Plass 

865 

Platel  V.  Craddock 

438 

Platmone  v.  Staple 

103 

Piatt  V.  McClure 

602  ee 

V.  New  York  Railway 

757 

V.  St.  John's  College 

700 

Player  v.  Nicholls 

312 

Plomley  v.  Richardson 

56 

Plow  Co.  V.  Bank 

886 

Plowman  v.  Riddle 

236 

Pluman  v.  Slocum 

429 

Plumb  V.  Fluitt 

223 

Plumbe  V.  Neild 

544 

545 

Plume  V.  Beale 

182 

Plumer  v.  Reed 

, 

206 

215 

Plymouth  v.  Hickman  _ 

82 

Plympton  v.  Boston  Dispensary 

554 

V.  Fuller 

566 

V.  Plympton 

466 

Poage  V.  Bell 

330 

Pocock  V.  Att'y.-Gen. 

708 

728 

729 

V.  Reddington 

453, 

457, 

460. 

468, 

508 

844 

902 

Podmore  v.  Gunning 

82 

181 

216 

Poillon  V.  Martin 

203 

438 

Poindexter  v.  Blackburn 

546 

639 

I'.  Jeffries 

627 

629 

cxxvm 


INDEX   TO    CASES    CITED. 
[References  are  to  sectiona.] 


Poland  V.  Beal  815  b 

Pole  V.  Pietsch  510 

V.  Pole  54,  143,  145,  147 

Poling  V.  Williams  75 

Polk  V.  Linthicum  276 

V.  Robinson  814 

Pollard,  Ex  parte  71 

V.  Cleveland  680 

V.  Downes  907 

V.  Doyle  432 

V.  Greenville  585 

V.  McKenney  171,  181 

V.  Maddox  757 

V.  Morrill  647,  649 

V.  Southern  Fertilizer  Co.  594,  819 

Pollard's  Settlement,  In  re                671 

Pollard's  Trusts  152 

Policy  V.  Johnson  212 

Pollexfen  v.  Moore  38,  231,  272 

Pollock  V.  Croft  614,  517 

V.  Hooley  493 

V.  Keasley  602  dd 

V.  Sykes  586 

Pomfret  v.  Winsor     433,  584,  863,  869 

Pond  V.  Hine  261 

Ponder  v.  McGruder  328 

Pontet  V.  Basingstoke  Canal  Co.      752 

Tool  V.  Bate  512 

V.  Cumminga  240 

V.  Dial  481 

V.  Harrison  65,  160 

V.  Lloyd  167 

V.  Morris  628 

V.  Phillips  147 

Poole  V.  Anderson  411,  500 

V.  Franks  820 

J).  Glover  602  j 

V.  Munday  407,  454,  467 

V.  Pass         243,  330,  602,  901,  910 

Pooley  V.  Quilter  195,  199,  428 

Poor  V.  Bradbury  112 

V.  Hazleton  188,  639,  641 

Poor  of  Chelmsford  v.  Mildmay       742 

Pope  V.  Brandon  602  e 

V.  Burlington  Savings  Bank         82 

V.  Dapray  171,  206 

V.  Durant  602  g 

V.  Elliott  386  a 

V.  Farnsworth  849,  851 

V.  Jackson  610 

V.  Patterson  305 

V.  Pope  113,  114 

V.  Prince  217,  828 

V.  Whitcomb       250,  256,  257,  258 

Popham  V.  Bamfield  308 

V.  Brooke  178,  210 

Popkin  V.  Sargent  723 

Poppleton  and  Jones'  Contract,  In 

re  586 

Porcher  v.  Daniel  668 

V.  Reid  655 

Porey  v.  Juxon  94 

Portarlington  v.  Soulby  71,  72 

Porter  v.  Baddeley  449,  511,  548 

V.  Bank  of  Rutland  86,  242 

V.  Doby  305,  359,  370 

V.  Dubuque  237 

V.  Morris  330 


Porter  v.  Powell 

612 

V.  Raymond 

330 

V.  Tournay 

547 

V.  Watts 

901 

V.  Williams 

690 

V.  Woodruff 

195 

Porter's  Case 

693 

700 

Porter's  Estate 

454 

847 

Portington  v.  Eglington 

189 

Portington's  Case 

Lady 

94 

Portland  S.  Co.  v. 

Dana 

828 

V.  Locke 

828 

Portlock  V.  Gardner  228,  246,  745, 

864,  865,  907,  923 

Portmore  v.  Morris  226 

V.  Taylor  188 

Portsmouth  v.  Fellows  275,  282 

Posey  V.  Cook  305 

Post  V.  Moore  112 

V.  Rohrbach  380 

Postell  V.  Postell  380 

Postelthwaite,  Re  196,  197 

Poston  V.  Ingraham  862,  868 

Potter  V.  Chapin  748 

V.  Chapman  19,  505,  507,  610, 

611 

V.  Couch  386,  388,  815  a 

V.  Fidelity  Ins.,  etc.  Co.  104 

V.  Gardner  598,  794,  795,  800 

V.  Hodgman  768 

V.  Jacobs  231 

V.  Kimball  76,  226,  602  b,  863 

V.  McDowall  243 

V.  Pearson  205 

V.  Porter  919 

V.  Ranlett  764 

V.  Saunders  217 

V.  Thornton  733,  736,  748 

V.  Thurston  724 

Pottow  V.  Fricker  319 

Potts,  Ex  parte  275,  280,  282,  618 

V.  Philadelphia  Assoc.  710 

V.  Potts  372 

V.  Richards  655 

Pott's  Appeal  652 

Pouey  V.  Hordern  511  b 

Powell  V.  Att.-Gen.  699 

V.  Brandon  380 

V.  Cleaver  465 

V.  Cobb  194 

V.  Evans  438,  440,  444,  465 

V.  Glen  312 

V.  Glover  430 

V.  Hankey  665 

V.  Knox  343,  414 

V.  Merritt  327,  437 

V.  Monson,  &c.  Manuf.  Co.      126, 

132    137 

V.  Murray  199,  228,  229,' 230, 

666 

V.  Powell  126,  133,  468,  900, 

902,  918 

V.  Price  361,  362,  828 

V.  Tuttle  409,  411 

V.  Wright  885 

V.  Yearance  159,  171,  181 

Power  V.  Lester  684 

Powers  V.  Bergen  610 


INDEX   TO    CASES    CITED. 
[References  are  to  aectioDB.] 


CXXIX 


Powers  V.  Bullwinkle  378 

V.  Hale  187 

V.  Homeopathic  Hosp.        710,  747 

Powerscourt  v.  Powerscourt      701,  729 

Powia  V.  liurdett  580 

V.  Corbett  5G8 

Powlett  V.  Herbert    419,  466,  844,  900 

Powys  V.  Blagrave  477,  540,  552 

V.  Caprou  506 

V.  Mansfield  144 

Poythress  v.  Poythrcss  819 

Pracht  &  Co.  v.  Lange  437  a 

Prance  v.  Sympson  862 

Prandlcy  v.  Fielder  6G8 

Prankerd  v.  Prankerd         126,  146,  147 

Prather  v.  McDowell  765 

Pratt  V.  Adams  596,  597,  600 

V.  Ayer  81 

V.  Barker  190,  204,  210 

V.  Beaupre  158,  814 

V.  Church  117 

V.  Douglas  640,  546,  554 

V.  Flamer  66 

V.  Jenner  671 

V.  Matthew  66 

V.  Oliver  768 

V.  Philbrook  171,  175 

V.  Pond  167 

V.  Rice  499 

V.  Roman  Cath.  Orphan  Asylum 

729,  730 

V.  Sladden  157,  158 

V.  Sheppard,  etc.,  Hosp.  112 

V.  Thornton  195 

V.  Vanwyck  232 

Pray  v.  Hedgeman  398 

V.  Pierce  299,  302 

Pray's  Appeal  440,  465 

Preachers'  Aid  Soc.  v.  England        300, 

312 

V.  Rich  724,  730,  748 

Preble  v.  Greenleaf  849 

Prendergast  v.  Lusliington  439 

V.  Prendergast  450,  451,  509,  510, 

511,  547,  548 

Prentiss  v.  Hall  920 

Presant  v.  Goodwin  119 

Presbyterian  Cong.  v.  Johnston  17,  328 

Prescott  V.  Pitts  262 

V.  Walker  322 

V.  Ward  843 

V.  Wright  171 

Presley  v.  Davis  615,  863 

V.  Stribling  330 

Preston  v.  Casner  82 

V.  Grand  885 

V.  Horwitz  855 

V.  Johnson  602  o 

V.  McMillan  127 

V.  Melville  544,  545 

V.  Tubbin  222 

Prevo  r.  Walters  126 

Prevost r.  Clarke  112,251 

11.  Gratz        82,  197,  205,  228,  596, 

745,  850,  863,  865,  918 

Prewett  v.  Buckingham  863 

V.  Coopwood  194 

V.  Laud  602  o,  661 

VOL.   I.  —  i 


Prewitt  V.  Prewitt  828,  836,  861 

Prey  v.  Stanley  386 

Price,  Ex  parte  480 

V.  Anderson  440,  544,  545 

V.  Bas.sett  248,  511 

V.  Berrington  35,  189 

V.  Blakemore      775,  837,  841,  842 
V.  Brown  127 

V.  Byrn  228,  229,  869 

V.  Courtney  768 

V.  Cutts  918 

V.  Dewhurst  182 

V.  Gibson  348 

V.  Great  Western  Railway         752 
V.  Hewitt  170 

V.  Huey  760 

V.  Krasnofif  328,  800,  873 

V.  Loaden  907 

V.  Lovett  69 

V.  Maxwell  697,  700,  730,  748 

V.  Minot  17,  82 

V.  Mulford  863,  865 

V.  Pickett  556 

V.  Planters'  Nat.  Bank     655,  660, 
661,  662,  671 
V.  Price         98,  100,  107,  108,  219, 

570 

V.  Reeves  92 

Price's  Appeal  860,  869,  999 

Price's  Estate  276 

Prichard  v.  Ames  647,  648 

Priddy  -5.  Rose  69 

Pride  v.  Fooks  371,  397,  417,  457, 

462,  472,  844,  894,  902 

Prideaux  v.  Lonsdale  104,  194 

Priestley  v.  Ellis  593 

V.  Lamb  636 

Priestman  v.  Tindall  848,  876 

Primrose,  In  re  922,  928 

V.  Bromley  260 

Prince  v.  Barrow  259 

V.  Hevlin  862 

V.  Hine  618,  915 

V.  Logan  618 

V.  Sisson  299 

Princeton  v.  Adams  733 

Prindle  v.  Holcombe  266 

Pring  V.  Pring  216 

Priiigle  V.  Allen  541 

Prinz  V.  Lucas  437  a,  815  b,  914 

Prior  V.  Talbot  263.  574 

Prise  V.  Sisson  304,  357 

Pritchard  v.  Bailey  386 

V.  Brown  137,  165,  299 

I'.JJuinchant  253 

V.  Wallace  127 

Pritchitt  V.  Nashville  Trust  Co.      544, 

545 
Probate  Court  v.  Niles  639 

Proctor,  Matter  of  547 

V.  Hever  611 

V.  Thrall  184 

Prondzinski  v.  Garbutt  181 

Proof  V.  Hines  192,  203 

Prop,   of   Brattle   Sq.   Church   v. 

Grant  380,  385 

Prosens  v.  Mclntire  131,  143 

Prosser  i'.  Edmonds  69 


cxxx 


INDEX   TO    CASES    CITED. 

[References  are  to  sections.] 


Proudfoot  V.  Hume  827 

Proudley  v.  Fielder  626 

Providence  Inst'n  v.  Carpenter  82 

Provident  Life  &  Tr.  Co.  v.  Fidelity 

Ins.,  etc.,  Co.  591,  602 

Provost  of  Edinburgh  v.  Aubrey     735, 

741 
Pruitt  V.  Pruitt  76,  76,  82,  322,  815  b 
Pryn  v.  Byrne  229 

Pryor  v.  Hill  632,  633 

Pugh,  Ex  parte  636,  657 

V.  Bell  137,  195.  217 

V.  Currie  127,  136 

V.  Hayes  307 

V.  Pugh  127,  135 

V.  Vaughan  329 

Puleston  V.  Puleston  329 

Pulitzer  v.  Livingston        377,  382,  383 
Pullen  V.  Ready  184,  513 

Pulpress  V.  African  Church  511,  511  a, 

720 
Pulteney  v.  Warren  871,  872 

Pulvertoft  V.  Pulvertoft     98,  100,  108, 

367 
Pundman  v.  Schoenich  828 

Purcell  V.  MacNamara  206,  230 

Purdew  v.  Jackson  626,  639,  641 

Purdie  v.  Whitney  598,  602  q 

Purdy  V.  Lynch  415,  416,  417,  418 

V.  Purdy  132 

Purefroy  v.  Purefroy  585,  597,  602 

Puryear  v.  Beard  660 

V.  Puryear  660 

Pusey  V.  Clemson  244,  918 

V.  Desbouvrie  184 

Pushman  v.  Filliter  112,  113,  116 

Pussnell  V.  Landers  602  ff 

Putnam  v.  Collamore  476  a 

V.  Lincoln  Safe  Dep.  Co.  245, 

464,  828 

V.  Story  438,  831,  926 

Putnam  Free  School  v.  Fisher  499,  501 
Pyatt  V.  Pyatt  613 

Pybus  V.  Smith         306,  655,  667,  670, 

847 
Pye,  Ex  parte  96,  98 

V.  George  217,  241,  828 

Pyle,  In  re  448 

V.  Henderson  328,  873 

Pym  V.  Blackburn  226 

V.  Lockyer  388 

Pyncent  v.  Pyncent  881 

Pyott's  Estate  448 

Pyron  v.  Mood  263,  303 


Q. 


Quackenbush  v.  Leonard  132,  428,  770 
Quade  v.  Bertsch  381,  391 

Quairoli  v.  Italian  Beneficial  Soc.     865 
Quakenboss  v.  South  wick  281 

Quarles  v.  Lacy  602  o,  602  y,  771 

Quarrell  v.  Beckferd  915 

Quayle  v.  Davidson  112,  123 

Queen  v.  Abrahams  17 

V.  Commissioners  328 

V.  Norfolk  Comm'ra  478 


Queen  v.  Orton 
Queen's  College,  In  re 
Queen's  College  Case 
Quigley  v.  Graham 
V.  Gridley 


17 

743 
743 
676 
231 


V.  Welter  438,  831,  926 

Quimby  v.  Uhl  598 

Quin's  Estate  310  a,  652 

Quincy  v.  Att.  Gen.  476  a,  700 

Quinlan  v.  Wickman         377,  380,  381, 

392 

Quinn  v.  Madigan  556 

V.  Marblehead  Social  Ins.  Co.     98 

V.  Safe  Dep.  &  Tr.  Co.  544 

V.  Shields  82 

Quirk  V.  Liebert  195 


R. 


Rabb  V.  Flenniken  783,  800 

Raby  v.  Ridehalgh  457,  467,  848 

Rachfield  v.  Careless     ;  94,  150 

Rackemann  v.  Tilton  918 

Rackham  v.  Siddall  245,  265,  304, 

315,  337,  846 
Radburn  v.  Jervis  572 

Radcliff  V.  Radford  127 

Radcliffe,  In  re  243,  248,  254 

Rader  v.  Stubblefield  729,  748 

Radley  v.  Radley  324 

Radsall  v.  Radsall  162 

Rae  V.  Meek  452,  457,  460 

Raff  el  V.  Safe  Dep.  &  Tr.  Co.  920 

Rafferty  v.  Mallory  197 

Raffety  v.  King  856 

Ragan  v.  Walker  127 

Ragsdale  v.  Ragsdale  181 

Rahn  v.  McElrath  691,  602 

Rabun  v.  Rahun  82 

Raiford  v.  Raiford  918 

Raikes  v.  Ward      112,  117,  118,  386  a, 

620 
Railroad  v.  Elliott  762 

Railroad  Co.  (G.  C.  &  S.)  v.  Kelly  207 
Railsback  v.  Williamson  137 

Railton  v.  Matthews  178 

Railway  v.  Barker  810 

Railway  Co.  ?).  Ailing  873 

R.  &  S.  R.  R.  Co.  V.  Miller  910 

Rains  v.  Wheeler  672 

Rainsford  v.  Rainsford  612,  847 

Rakestraw  v.  Hamilton  232,  238 

Ralston  v.  Telfair  150,  159,  891,  900 
Ralston's  Appeal  591,  592,  602 

Ramage  v.  Ramage  126 

Ramey  v.  Byers  82 

V.  Green  541 

Ramirez  v.  Smith  223 

Ramsay  v.  Joyce  213 

V.  Marsh  298,  299,  301,  306 

Ramsborger  v.  Ingraham  680 

Ramsbottom  v.  Parker  192 

Ramsdall  v.  Craighill  640 

Ramsdell  v.  Edgarton  212,  291 

V.  Sigerson  592 

Ramsden  v.  Hylton  184,  186 

Ramsey  v.  Merriam  602  s,  602  v 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


CXXXl 


Ramsey  v.  Ramsey 

918 

Rand  v.  Francis 

598 

V.  Hubbell 

544, 

545 

Randal  v.  Hearle 

112 

j;.  Randal 

111 

Randall  v.  Bookey 

151 

154 

V.  Constans 

84. 

122, 

181, 
226 

V.  Errington 

195 

851 

867 

V.  Harrison 

252 

V.  Lingwall 

223 

V.  Morgan 

79, 

208 

V.  Payne 

515 

V.  Phillips 

13G, 

162 

V.  Randall 

82, 

117, 

119 

V.  Russell 

195, 

538, 

547 

Randle  v.  Gould 

672 

Randolph  v.  East  Birmingham 

Land  Co.  459,  769 

V.  Russell  538,  547 

V.  Scruggs  586,  907,  919 

V.  Wendel  380 

Rankin  v.  Bancroft  &  Co.  129 

V.  Duryer  593 

V.  Harper  126 

V.  Lodor  585,  593 

V.  Porter  206 

V.  Rankin  766 

Rankin  M'f'g  Co.  v.  Bishop  223 

Rankiiie  c.  Metzger  499,  502,  505 

Ranncv  v.  Hvers  82 

Ransdel  c.  Moore  82,  83,  110,  181 

Ransome  v.  Burgess  612,  615 

Rapalje  v.  Hall  468,  918 

Raphael  v.  Bank  of  England  837 

V.  Boehm  471,  472,  847,  901 

V.  Mullen  58,  76 

Rapley  v.  McKinney's  Estate     75,  79, 

86 
Rashleigh  v.  Master  566,  747,  891, 

894 

Rastel  V.  Hutchinson  135 

RatclifJe  v.  Dougherty  676 

V.  Ellison  226 

V.  Graves  464 

V.  Huntley  674 

V.  Mason  322 

V.  Winch  440,  482 

Rathburn  v.  Clark  602  r 

V.  Platner  596 

0.  Rathburn  162 

Ratliff's  Ex'rs  v.  Commonwealth  386  a, 

815  a 

Ratto's  Estate  570 

Rau  r.  Small  429,  430 

Ravisics  v.  Allston  591 

Rawo  V.  Chichester  196 

Rawleigh's  Case  147 

Rawlings  v.  Adams  324 

V.  Fuller  874 

Rawlins  v.  Goldfrap  615 

Rawson  v.  Lampeman  299 

V.  Nicholls  682 

Ray,  Ex  parte  647,  648 

V.  Adams  112 

V.  Doughty  415,  417,  418 

V.  Kelley  920 

V.  Long  144 


Ray  V.  Pung  322 

V.  Simmons  82,  99 

Raybold  v.  Raybold    82,  127.  900,  918 
Raybould,  In  re  437  a,  815  b,  914 

Rayl  V.  Rayl  137 

Raymond  v.  Harris  386  a,  815  o, 

827  a 

V.  Holden  17,  328 

V.  Webb  764,  770 

Rayner,  In  re  460 

t>.  Mowbray  250,  257 

V.  Pearsall  225 

Raynes  v.  Raynes  454 

Rca  V.  Williams  136 

Reach  v.  Kennegate  181,  226 

Read  v.  Citizens'  St.  R.  Co.  476  a 

V.  Devaynes  272 

V.  Head  544,  545 

V.  Hufif  143 

V.  Lichfield  571 

V.  Patterson         248,  511.  612,  615 

V.  Power  320 

V.  Robinson  97,  259,  593 

V.  Snell  .359,  363,  369 

V.  Steadman  94,  152,  437 

V.  Truelove  261,  264,  268,  401 

Readdy  v.  Pendergast  202 

Reade  v.  Livingstone  647 

V.  Reade  342,  871,  872 

V.  Silles  724 

V.  Sparkcs  886,  888,  900 

Reading  i'.  Wilson  603 

Ready  v.  Kearsley  75,  299 

Real  Estate  Inv.  Co's  Estate  598 

Rearich  v.  Swineheart  226 

Rector  v.  Alcorn  112 

V.  Dalby  920 

V.  Fitzgerald  223 

V.  Gibbon  129 

Reddy  v.  Raymond  592,  593,  602 

Rede  v.  Oakcs  786 

Redcnour  r.  VMierritt  260,  261 

Redfern  v.  Middleton  299 

Redtield  v.  Redfield  802 

Redford  v.  Catron  235 

V.  Clarke  790,  800,  855,  860 

V.  Gibson  232,  235,  237,  239 

Redheimer  v.  Pyron  598,  794.  798,  800 

Redington  i'.  Redington  126,  131, 

139,  143,  145,  146,  147.  347 

Redmond's  Adm'x  v.  Redmond        324 

Redwick,  In  re  275 

Redwood  i'.  Riddick  863,  880 

Reece  v.  Allen  17,  328,  602  aa 

V.  Frye  433,  863 

Reech  v.  Kcnnegal  900 

Reed  v.  Beazley  672,  673 

V.  Dickcv  217 

V.  Gordon  301 

V.  Head  547 

V.  Howard  75 

V.  Johnson  601 

V.  Lukens  82.  122,  231 

V.  Marble  438 

».  Norris  206 

V.  O'Brien  102.  878 

V.  Painter  137,  865 

V.  Reed  541 


CXXXll 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.) 


Reed  v.  Sperry  137,  144 

V.  Warner  206 

V.  Whitney  324,  342 

Reede  v.  Emery  590 

Reeder  v.  Barr  242 

Rces,  Ex  parte  282 

V.  Keith  633,  640 

V.  Livingston  82 

V.  Waters  627,  628,  631 

V.  Williams  315,  353,  469 

Reese  v.  Holmes  633 

V. Ivey  790,  800 

V.  Meetze  918 

V.  Murnan  132 

V.  Wallace  226 

V.  Whitney  .  324 

V.  Wyman  171 

Reeside  v.  Peter  764,  770,  782 

Reeve  v.  Att.-Gen.      40,  308,  325,  705, 

721,  722,  729,  731 

V.  Parkins  816 

V.  Rocher  632 

V.  Strawn  133 

Reeves  2).  Baker  112,  113 

V.  Brymer  615 

V.  Dougherty  855 

V.  Evans  815  c 

V.  Heme  514 

V.  Pierce  828 

V.  Tappan  269,  341,  496,  500,  503 

Reformed  Dutch  Church  v.  Mott    744 

Reggs  V.  Swan  82 

Regina  v.  Fletcher  846 

V.  Shee  328 

V.  White  478 

Rehden  v.  Wesley      417,  446,  848,  876 

Reichenbach  v.  Quinn  715 

Reichert  v.  Mo.  &  111.  Coal  Co.       264, 

269,  275,  284,  287, 

297 

Reid  V.  Bank  of  Mobile  828 

V.  Blackstone  112 

V.  Clendenning  448 

V.  Fitch  82,  88,  127,  142, 

143 

V.  Gordon  6,  321,  765 

V.  Lamar  655,  661 

V.  Morrison  324 

V.  Mullins  433,  782 

V.  Reid  79,  82,  248,  277,  297 

V.  Shergold  511  6 

V.  Vanarsdale  97 

V.  Voorhees  99,  377 

Reil  V.  Baker  602  bb 

Reilly  v.  Bristow  358 

V.  Whipple  95 

Reinhard  v.  Bank  of  Kentucky        593 

Reinhart  v.  Bradshaw  133 

Relf  V.  Eberly  861 

ReUe'v.  Relfe  234 

Remick  v.  Butterfield  602  v 

Remnant  v.  Hood  903  a 

Ren  V.  Bulkeley  784 

Renard  v.  Graydon  592 

Rendlesham  v.  Meux  768,  784 

Reno  V.  Oakes  773 

R(Miew  V.  Butler  195 

Rennecker  v.  Scott  675 


Renner  v.  Marshall  511  c 

Rennie  v.  Ritchie  275,  670 

V.  Young        _  870 

Renwick  v.  Renwick  631 

Renz  V.  Stoll  83 

Repp  V.  Repp  232,  239 

Reresby  v.  Newland  578 

Resor  v.  Reaor  127 

Revel  V.  Revel  639 

Revell  V.  Hussey  122 

Revelsky  v.  Brown  322 

Revett  V.  Harvey  204 

Rewis  V.  Williamson  232,  239 

Rex  V.  Anstrey  511  b 

V.  Commissioners  910 

V.  Essex  910 

V.  Flockwood  414 

V.  Lexdale  286 

V.  Netherseal  93 

V.  Newman  700 

V.  Northwingfield  214 

V.  Partington  718,  724 

V.  Wallace  270 

Reyburn  v.  Wallace  554 

Reynell  v.  Sprye         171,  173,  187,  214 

Reynes  v.  Dumont  122 

Reynish  v.  Martin  512,  514,  517 

Reynolds,  Ex  parte  _  198,  209,  275 

V.  Bank  of  Virginia  594 

V.  BlaisdeU  137,  144 

V.  Brandon  476  a 

V.  Bristow  715 

V.  Caldwell  126 

v.  Hennessy  861 

V.  Jones  240,  346,  871 

V.  Morris  132 

V.  Reynolds  305 

V.  Stark  County  31 

V.  Sumner  855,  863,  865 

V.  Walker  468 

V.  Waller  191 

Reynolds's  Settlement,  In  re  275 

Rham  v.  North  205 

Rhea  v.  Shields  610 

V.  Tucker  132 

Rhett  V.  Mason  119,  250 

Rhinelander  v.  Barrow  229 

V.  Farmers'  L.  &  T.  Co.  760 

Rhoades  v.  Rhoades  615,  616 

R.  I.  Hospital  Trust  Co.  v.  Harris  556 

V.  Olney  723 

Rhodes  v.  Arthur  232,  235 

V.  Bates  104,  204 

V.  Green  126,  221 

V.  Sanderson  199 

Ricard's  Trust  Estate,  In  re  66 

Ricardi  v.  Gabourg  610 

Rice  V.  Barrett               '  23 

V.  Burnett  303,  310,  311 

V.  Cleghorn  195,  198 

V.  Gordon  187 

V.  Rice  127,  226 

V.  Sally  673 

V.  Satterwhite  380 

V.  Thompson  639 

V.  Tonnele  615,  617 

Rich  V.  Beaumont  656 

V.  Cockell  647,  666.  668 


INDEX    TO    CASES   CITED. 
[ReferenoeB  are  to  sections.) 


CXXXIll 


Rich  V.  Jackson 

226 

V.  Morisey 

199,  602  V 

Richards,  Jn  re 

252 

V.  Baker 

516 

V.  Chambera 

633,  655 

V.  Delbridge 

96,  99 

V.  Hazzards 

591 

V.  Holmes 

602  0, 

602  p,  602  u, 

602  V,  782 

V.  Kcyea  849 

II.  Learning  238 

V.  Lewis  213 

V  Manaon  127 
V.  Merrimack,  &c.  Railway      754, 

757,  75S 

V  Perkins  818 
V.  Reeves  104 
V.  Richarda  79,  640 
V.  Seal  415 

Richardson,  Ex  parte  454,  585 

V.  Adams  181 

V.  Baker  232 

V.  Bank  of  England  826,  827 

V.  Bleight  186 

V.  Chanslor'a  Trustee  864 

V.  Chapman  116,  259 

V.  Cole  921 

V.  Day  133 

V.  Eyton  185 

V.  Hulbert  271,  503,  876 
V.  Jenkins            260,  848.  876,  877 

V.  Jones  195,  230 

V.  Larpent  885 

V.  Linney  200 

V.  McConaughey  171,  181 

V.  Mounce  126 

V.  Mullery  705,  722,  728 

V  Richardson  97,  98,  101, 

544,  545 

V.  Ridgely  237 

V.  Rusbridge  903  a 

V.  Spencer  430 

V.  Stodder  310,  312,  647,  677, 

920 

V.  Taylor  138 

V.  Thompson  226 

V.  Woodbury  336,  338 

Richen  v.  White  645 

Richerson,  In  re  448 

Richeson  v.  Ryan  343 

Richmond  v.  Arnold  280,  901 

V.  Davis  484,  736 

V.  Hughes  602  g 

V.  Richmond  545 

V.  Tayloe  748 

Richter  v.  Jerome  873 

Richwine  v.  Keim  641 

Rick's  Appeal  104,  171 

Ricker,  Re  471 

V.  Moore  122 

Ricker's  Estate,  In  re  829 

Ricketts  v.  Bennett  486 

Ricketts'  Appeal  195 

Ricketts's  Trusts  784 

Riddle  v.  Beattie  95 

V.  Emerson  86 

V.  Mandoville  244 

V.  Whitchill  127,  864 


Rideout  v.  Dowding  151,  158 

V.  Lewis  665 

Rider  v.  Bickerton  230 

V.  Hulse  645 

V.  Kidder  126,  137,  139,  242 

V.  Mason  386  a,  555 

V.  Maul  230 

V.  Rider  130 

V.  Sisson  458,  768 

Ridge,  In  re  546 

Ridgeley  v  Johnson  274,  411,  412 

Ridgely  v.  Cross  511  c 

Ridgeway,  Ex  parte  195,  457 

Ridgway  v.  Wharton  84 

Ridley,  Re  264,  269,  671 

Ridley  v.  Hetman  855 

Rieger  v.  Schaible  122,  646 

Rife  V.  Gcyer  118,  307,  311,  386  a 

Rife's  Appeal  104 

Rigby,  Ex  parte  404,  409,  411 

Rigden  v.  Vallier  136,  364 

V.  Walker  132 

Riggan  v.  Riggan  104 

Riggcs  V   Swann  75 

Riggs  1'.  Cragg  556 

V.  Murray  590,  591 

Right  V.  Cathill  263 

V.  Smith  298,  306 

Riley  »   Garnett  308 

V.  Hampshire  County  Nat. 

Bank  76 

Rindle,  Matter  of  54 

Ring  V.  Hardwick  380,  509  a 

Ringgold  V.  Bryan  239 

V.  Malott  436 

V.  Ringgold        418,  419,  420,  458, 

463,  468,  471,  475,  602  v, 

769,  770,  851,  918 

Ringham  v.  Lee  243 

Ringo  V.  Binns  206 

V.  R.  E.  Band  588 

Riiikcnberger  v.  Meyer  511  c 

Riordan  v.  Schlicher  386 

Ripley  v.  Waterworth  242 

Rippen  v.  Priest  338 

Ripperdone  v.  Cozine  239 

Ripple  V.  Ripple  569 

Rippon  V.  Dawding  656 

V.  Norton  386  b 

Rippy  V.  Cant  189,  190 

Rishton  v.  Cobb  615,  637 

Rist's  Estate  864 

Ritchie  i'.  Broadbent  633 

Ritter  v.  Bruss  661 

Rittgers  r.  llittgera  117 

Rittson  V.  Stordy  64,  327 

Rivers  v.  Thayer  644 

Rives  V.  Lawrence  172 

Rivott" s  Case  739 

Roach  V.  Caraffa  828,  841,  863 

V.  Gavan  614 

V.  Haynea  511  c 

V.  Hudson  215 

V.  Jelks  468 

Roach's  Estate,  In  re  263,  453,  458 

Roarty  v.  Mitchell  602  p 

Robards  v.  Wortham  564 

Robarts  r.  Haley  127 


CXXXIV 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Robb  V.  Washington  &  Jeff.  Col- 
lege                   72,  97,  347,  386  a,  391 

Robh's  Appeal  127,  918 

Robbins  v.  Bates  602  v> 

V.  Smith  920 

Robenctt's  Appeal  918 

Roberdeau  v.  Rouse  71,  871 

Robert,  Ex  parte  277 

V.  Corning  23 

V.  West  646,  653,  660 

Roberts,  Matter  of  381,  918 

V.  Armstrong  863 

V.  Broom  841 

V.  Collett  633 

V.  Dixwell  324,  358,  359,  369 

V.  Hall  768 

V.  Kingsley  361 

V.  Moseley  261,  310,  310  o 

V.  New  York    El.  R.  Co.  873 

V.  Norcross  590 

V.  Opp  127 

V.  Remy  144 

V.  Roberts  100,  103,  104.  165, 
195,  214 

V.  Robinson  815  c 

V.  Rose  239 

V.  Spicer  649 

V.  Stevens  386  a 

V.  Tunstall  229,  230,  869 

V.  Ware  133 

V.  Wynne  182 

V.  Yancey  926 

Robertson  v.  Bullions  733,  748 

V.  Collier  546,  547 
V.  De  Brulatour    59,  277,  297,  328, 
544,  545,  547,  918 

V.  Desmond  593 
V.  Gaines          262,  499,  501,  602  m 

V.  Johnson  366,  662,  815  a 

V,  Johnston  386  a 

V.  McCarty  82 

V.  Macklin  141 

V.  Norria  633,  861 

V.  Paul  602  k 

V.  Robertson  215 

v.  Scott  826 

V.  Skelton  122 

V.  Sublett  593,  594,  602  e 

V.  Wendell  901 

V.  Wood  864 

Robinett's  Appeal  470 

Robins  v.  Deshon  343 

V.  Embry  287,  588,  590,  592 

Robinson,  Matter  of  259,  277,  282 

V.  Adams  328,  886 

V.  Allen  253 

V.  Bishop  381 

V.  Bonaparte  392,  615,  903  a 

V.  Briggs  202 

V.  Burritt  217 

V.  Butler  602  v 

V.  Comyns  304 

V.  Cox  214 

V.  Cudwin  199 

V.  Cullum  602  v 

V.  Cuming  13,  347 

V.  Dart  661 

V.  Denison  181 


Robinson  v.  Gee  214 

V.  Geldard  573 

V.  Grey  298,  305,  310 

11.  Hardcastle  383 

V.  Harkin  404,  415,  441,  848, 

863 
V.  Hook  855 

V.  Huffman  678 

V.  Jewett  538 

v.  King  216 

V.  Lowater  597,  795,  802,  803, 

805 
V.  Macdonald  68 

V.  Maulden  67,  330 

V.  Miller  324 

V.  Owens  239 

V.  Pence  790 

V.  Pett         259,  428,  904,  916,  918 
V.  Pierce  321,  858,  860 

V.  Preston  136 

V.  Randolph  653,  671 

V.  Robinson        127,  134,  147,  164, 
187,  398,  440,  457,  458,  462. 
468,  469,  551,  607,  766 
V.  Smith  112,  207,  507 

V.  Taylor  151,  152 

V.  Thomason  593 

V.  Tickell  117,  118,  620,  624 

V.  Townshend  583 

V.  Wheelwright  671 

V.  Woelper  642 

Robinson's  Committee  v.  Elam       864, 

865 

Robinson's  Trust,  In  re  117 

Robison  v.  Codman  322,  324 

Robles  V.  Clark  140,  518 

Robson  V.  Flight  19,  273,  530,  803 

V.  Harwell  86,  226 

Roby  V.  Boswald  676 

V.  Colehour  79,  194,  202,  206 

V.  Smith  39,  55 

Roca  V.  Byrne  828 

Roch  V.  Callen  862 

Rochdale  Canal  Co.  ».  King      869 

Roche,  In  re       275,  279,  290,  291,  292 

V.  Farnsworth  199 

V.  Hart  463,  464,  468,  894 

V.  O'Brien  851,  861,  867 

Rochefoucauld  v.  Boustead       162,  171, 

181,  206,  429,  865 

Rochell  V.  Tompkins  661 

Rochester  v.  Att.-Gen.  746 

Rochford  v.  Hackman  388,  555 

Rochfort  V.  Fitzmaurice  359,  360,  361, 

362,  369,  371,  372,  374 

V.  Seaton  441,  444 

Rockville  Bank  v.  Citizens'  Gas 

Light  Co.  815  c 

Rockwood  V.  Rock  wood  182 

V.  School  District  828 

Roden  v.  Jaco  602  p 

V.  Murphy  330 

Rodgers  v.  Marshall  107,  108 

V.  Rodgers  541 

Rodman  v.  Munson  783 

Rodney  v.  Chambers  672 

Rodriquez  v.  Hefferman  243 

Roe  V.  Jeffery  380 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


CXXX\' 


Roe  V.  Read 

336,  337 

Roper  V.  Roper 

679 

V.  Tranmer 

379 

Roscommon  v.  Fowke 

511  c 

V.  Vingut 

764 

Rose  V.  Crockett 

275 

RofTo,  In  re 

541 

V.  Cunningham 

03 

Rogaii  V.  Walker 

602  d 

V.  Gibson 

126 

Roger's  Trust 

556 

V.  Haydiu 

206 

Rogers,  In  re 

644,  545 

V.  Rose 

747,  891 

V.  Acaster 

633 

Roseberry  v.  Taylor 

584 

V.  Adams 

828 

Roseboom  v.  Mosheer 

262, 

270.  785 

V.  Bonner 

239 

Roseman  v.  Mahony 

815  c,  828 

V.  Bumpass 

639 

Ilosenbaum  v.  Garrett 

72 

V.  Daniel 

843 

Rosenberger's  Appeal 

852 

V.  Dill 

610 

Rosevelt  v.  Fulton 

171,  187 

V.  Donnellan 

132 

Rose  Will  Case 

724 

V.  Earl 

226,  361 

Ro.shi's  Appeal 

730,  733 

V.  Fales 

664 

Rosier  v.  Nichols 

783 

V.  Gaston 

202  6 

Ross  V.  Barclay 

499.  500 

V.  Jones 

223 

V.  Clark 

232. 

233.  235 

V.  Linton 

883 

V.  Duncan 

65 

V.  Ludlow 

310,  660 

V.  Ewer 

655 

V.  Marshall 

828 

V.  Gill 

608 

V.  Murray 

133 

V.  Goodsall 

509 

V.  Patterson 

606 

V.  Hogenian 

132.  136 

V.  Pell 

594 

V.  Horton 

222 

V.  Ramcy 

79 

V.  Morton 

639 

V.  Richards 

181 

V.  Ross 

826 

V.  Rogers        59,  75, 

104, 

128,  151, 

V.  Whitson 

237 

205,  297,  476  a, 

559,  562, 

V.  Willoughby 

672 

600 

672 

698,  826 

Ross's  Charity 

705 

V.  Simmons 

134,  215 

Ross's  Estate 

556 

V.  Sisters  of  Charity 

299,  302 

Ross's  Trust 

670 

V.  Skillicorne 

795 

796,  800 

Rossett  V.  Fisher 

602  » 

V.  Smith 

661 

Ro.ssher,  In  re 

386 

V.  Soutten 

616 

Roasitor    v.    Trafalgar 

Life 

Ass. 

V.  Thomas 

699 

Co. 

779 

V.  Vail 

591 

Rosslyn's  Trust 

395 

V.  Ward 

661.  680 

Roth,  Re 

465 

V.  Wheeler 

762 

Rothmaler  v.  Myers 

272 

V.  White 

330.  668 

Rothschild  v.  Daugher 

223 

Roger's  Appeal 

891,  900 

V.  Schiff 

729.  748 

Roger's  Estate 

393 

Roth  well  V.  Dewes 

126 

135.  215 

Roggenkamp  v.  Roggenkamp 

245 

V.  Rothwell 

826,  827 

Rolfe  V.  Budder 

647 

Rotter  V.  Scott 

132.  144 

V.  Gregory          166, 

828, 

840,  859, 

Roupe  V.  Atkinson 

633 

860 

861,  865 

Rous  V.  Jackson 

383 

Roller  V.  Spilmore 

172 

Routh  V.  Howell         406 

,  443 

465.  914 

Rollins  V.  Marsh 

603 

V.  Kinder 

595,  877 

V.  Mitchell 

172.  181 

Routledge  v.  Dorrill 

379 

Rolfs  Case 

693 

Row  V.  Dawson 

68 

Roman  v.  Long  Distance  Tel 

&Tel. 

V.  Jackson 

645 

Co. 

328 

Rowan  v.  Chute 

122 

V.  Mali 

202 

V.  Lamb 

199.  602  aa 

Rome  V.  Shropshire 

677,  920 

V.  Riley 

556 

Ronald  v.  Buckley 

607 

Rowe  V.  Allison 

624 

Rong  V.  Haller 

736 

V.  Beckett 

490 

Roofer  v.  Harrison 

438 

V.  Chichester 

538 

Rook  V.  Worth 

605,  611 

V.  Johnson 

144 

Rooke  ?i.  Worrell 

572 

V.  Lewis 

490 

Rooker  v.  Rooker 

828 

V.  Rowe 

451,  666 

Roome  v.  Phillips 

500,  766 

Rowell  V.  Freese 

137 

Roosevelt  v.  EUithorp 

891 

Rowland  v.  Best 

468 

V.  Mark 

559 

V.  Maddock 

919 

V.  Roosevelt 

441 

V.  Morgan        373, 

390,  476  a,  928 

Root  V.  Blake 

126 

11.  Witherden 

444.  463 

Roper  t'.  Halifax 

597,  785 

Rowletts  r.  Daniel 

299 

V.  Holland 

17 

Rowley  v.  Adams       438 

.  476 

535.  536 

V.  McCook 

232,  238 

V.  Rowley 

511  a 

V.  Radcliffe 

152 

V.  Union 

665 

691.  849 

CXXXVl 

IND] 

EX    TO    C 

ASES    CITED. 

[References  are  to  sections.] 

Rowlls  V.  Bebb          449, 

450, 

511,  5.S9, 

Ruston  V.  Ruston 

662.  565. 

548,  551 

571 

Rowton  V.  Rowton 

84,  324 

Rutgers  v.  Kingsland 

218 

Roy  V 

Beauforts 

192 

Rutherford  v.  Carpenter 

181 

V. 

Gibbon 

825,  827 

V.  Ruff 

191 

V. 

McPherson 

149 

Rutherford  Land  &  Imp 

.  Co.  V. 

V. 

Monroe 

448 

Sanntrock 

768 

Royal 

V.  Royal 

900,  902 

Rutland  v.  Rutland 

154 

Royal 

V.  McKenzie 

■   415 

Rutledge,  Ex  parte 

556 

Roydfc 

V.  Royds 

901 

V.  Smith           79,  83 

320,  598,  798 

Roycr 

's  Appeal           458, 

463 

606,  607 

Ryall  V.  RoUe 

68, 

345.  438,  835. 

Royster  v.  Stallings 

586 

837 

RozeU 

V.  Vansyckle 

189 

V.  Ryall 

82,  835.  839 

Rua  V 

Watson 

82,  225 

Ryan  v.  Bibb 

328,  330 

Rucker  v.  Abell 

149 

V.  Dox 

206.  215.  226 

Ruckman  v.  Cox 

863 

V.  Doyle 

217 

Ruddick  v.  Albertson 

60 

V.  Mahan 

252 

Rudisell  v.  Watson 

647 

649,  651 

V.  O'Connor 

79 

Rudland  v.  Crozier 

119 

V.  Porter 

820  a 

Rudy' 

s  Estate 

448 

V.  Spurill 

639 

Rudyard  v.  Neirin 

635 

V.  Williams 

75 

Ruff  V 

.  Summers 

918 

Ry croft  v.  Christy 

102 

104,  105.  649 

Ruffin 

V.  Harrison 

263 

Ryder,  Matter  of 

616 

Rugby  School 

700 

V.  Bickerton 

453, 

460.  462.  467. 

Rugely  V.  Robinson 

815  a 

848 

Ruggl 

es  V.  Tyson 

764 

V.  French 

849 

RumboU  V.  Rumboll 

144 

145,  146 

V.  Hulse 

676,  678 

Rumfelt  V.  Clemens 

680,  685 

Ryland  v.  Banks 

655.  667 

Rumph  V.  Abercrombie 

187,  189 

V.  Smith 

639.  640 

Rundle  v.  Rundle 

139 

Rymer,  In  re 

725.  728 

Rundlett  v.  Dale 

590 

Rynd  v.  Baker 

97,  104 

Runkl 

e  V.  Gaylord 

602  z 

Runj^an  v.  Coster's  Lessee 

45 

Rupp' 

s  Appeal 

127 

S 

Rush 

i;.  Vought 

173,  664 

Rush' 

3  Estate 

459,  460 

Saagar  v.  Wilson 

197 

Rushloy  V.  Mansfield 

189 

Sabin  v.  Heape 

785, 

800.  801,  802, 

Rushworth,  Ex  parte 

210 

803,  805 

Rushworth's  Case 

196 

V.  Stickney 

602  0,  602  V 

Russell,  Matter  of 

448 

Sacia  v.  Berthoud 

225,  810 

V. 

Allen        133,  138, 

142 

693,  730 

Sacramento  Bank  v 

Montgomery      99 

V. 

Bruer 

75,  76,  77 

Sadd,  In  re 

907 

V. 

Clark 

244 

Sadler  v.  Hobbs 

261, 

416,  417,  419. 

V. 

Clowes 

437 

421,  422 

V. 

Coffin 

299,  302 

V.  Houston 

660 

V. 

Dickson 

652 

V.  Lee 

543 

V. 

Duflon 

602  Jf 

V.  Pratt 

511a 

V. 

Girard  Trust  Co. 

736,  738 

Sadler's  Appeal 

217 

V. 

Hilton 

448 

Safe  Dep.  &  Tr.  Co 

.  V.  Bank             122 

V. 

Huntington  Bank 

864 

V.  Cahn 

328,  815  c 

V. 

Jackson        77,  83 

,  93, 

116,  126, 

V.  Friend 

511  c 

128 

133,  714 

Safe  Dep.  Co.  v.  Sutro 

503 

V. 

Kellett 

624 

699,  726 

V.  White 

545 

V. 

Kennedy 

251 

Safford  v.  Hind 

142,  206 

V. 

Lasher 

594 

V.  Rantoul 

79 

V. 

Lode 

126 

V.  Wade's  Ex'r 

815  c 

V. 

Loring 

544 

Sage  V.  Culver 

242 

V. 

McCall 

245 

Sale  V.  Moore 

112,  113,  116 

V. 

Milton 

815  a 

V.  Saunders 

633 

V. 

Peyton 

24 

129.  863 

V.  Thornberry 

112 

115,  159,  181 

V. 

Plaice 

225 

768,  809 

Salem  Mill  Dam  v. 

Ropes                  757 

V. 

Russell 

768,  769 

Salinas  v.  Pearsall 

127 

V. 

Southard 

226 

Salisbury,  In  re 

605,  610 

V. 

U.  S.  Trust  Co. 

112 

V.  Bigelow 

498,  602  k 

V. 

Woodward 

593 

V.  Clarke 

137,  162 

Russell's  Appeal 

104 

V.  Slade 

766 

C 

ase 

52,  53 

Salmon,  In  re 

457,  467 

Patent 

67 

V.  Cutts 

195,  199,  '20i 

INDEX    TO    CASES   CITED. 
[UeferenceB  ore  to  sectionH.) 


CXXXVll 


Salmon  v.  Hoffman  232 

Salomans  v.  Laing  877 

Saloway  v.  .Straw bridge     340,  494,  495 

Salsburv  v.  Bagott  X.JO 

V.  Black  171 

Salt  V.  Chattaway  160 

Salter,  Ex  parte  617 

V.  Bradshaw  188 

V.  Cavanagh  151,  855 

Saltern  v.  Molhuish  183 

Saltmarsh  v.  Barrett  152,  158,  468, 

470,  471 

V.  Bean  209 

V.  Burn  602  v 

Saltonstall  v.  Sanders       687,  699,  705, 

709,  712,  720,  724,  748 

Saltoun  V.  Hanston  260 

Salusbury  v.  Denton         248,  251,  252, 

255,  256,  714 

Salvage  v.  Haydock  223 

Sal  way  v.  Sal  way  443,  635 

Sammes  v.  Kichuiond  894 

Sampay  v.  Gould  287,  288,  375, 

509 

Sample  v.  Coulson  134,  137 

Sampson,  In  re  297 

V.  Mitchell  874 

Sanborn  v.  Sanborn  96 

Sanborn's  Estate,  In  re  263 

Sanchez  v.  Dow  855 

Sandars  v.  Richards  809 

Sanders  v.  Deligne  218 

V.  Houston,  etc.  Co.  305,  309, 

328,  330,  464,  815  b.  873 

V.  Miller  903  a 

V.  Page  633,  653 

V.  Rodney  672 

V.  Rogers  460,  847 

V.  Steele  132 

Sanderson  v.  Pearson  918 

V.  Walker  128,  195,  198,  902 

V.  White  724,  736,  744,  748 

Sanderson's  Trust  119,  152,  386, 

386  6 
Sandford  v.  Flint  602  ee 

V.  Jodrell  882 

Sandford  Charity  282 

Sandon  v.  Hooper  915 

Sands  v.  Champlin  560 

V.  Nugee  502 

V.  Old  Colony  Tr.  Co.  104 

Sandys  v.  Sandys  578,  892 

V.  Watson  900 

Sanford  v.  Hamner  166,  206 

V.  Irby  305 

V.  Sanford  79,  181 

Sanger  v.  Brooks  238 

Sangster  v.  Love  602  n 

Sangston  v.  Gaither  592 

V.  Gordon  63 

Sansom  v.  Rumsey  183 

Sappington  v.  School  Fund  Trus- 
tees _  729,  748 
Sargent  v.  Baldwin  104 
V.  Bourne  118 
V.  Cornish  43 
V.  Franklin  Ins.  Co.  98 
V.  Howe                602  d,  602  i,  602  n 


Sargent  v.  Sargent    547,  550,  551,  556, 

575   899 

y.  Wood  828,  83o!  843 

Sartill  V.  Robeson  324 

Sarvcr  v.  Clarkson  239 

Satterthwaite's  Estate,  In  re  '111 

Satterwhite  v.  Littlcgeld  918 

Saul  D.  Pattinson  248,  254 

Saulsbury  v.  Denton  112 

Saunders  v.  Bournford  347 

V.  Collin  855 

II.  Cramer  208 

V.  Dehew  217,  218,  828 

V.  Gregory  456 

V.  Houghton  546,  547 

V.  Leslie  235,  236 

V.  Miller  908 

V.  Richards  194,  260,  433 

V.  Saunders  891,  896 

I'.  Schmaelzle  334,  343 

V.  Vautier  396,  509  o,  622 

V.  Webber  401,  410 

Saunders-Davies,  //i  re  577 

Saunderson  v.  Stearns  262 

Savage  v.  Benham  639 

V.  Brocksopp  176 

V.  Carroll  842 

V.  Dickson  891 

V.  Foster  53 

V.  O'Neil  676 

V.  Tyers  359 

V.  Williams  204 

Saville  v.  Tancred  246 

Savings  Bank  v.  Bates  688 

Savings  Fund's  Appeal  927 

Savings  Inst.  v.  Hathorn  96 

V.  Titcomb  82 

Sawtelle  v.  Witham  729 

Sawj'er  v.  Baldwin  903  a 

V.  Birchmore  924 

V.  Cook  855,  864 

V.  Hoag  207 

V.  Hovey  186 

V.  Sawyer  669,  848,  849 

Sawyer's  Appeal  262 

Saxon  V.  Barksdale  225 

Saxon  Life  Ass.  Co.,  In  re  851 

Saxton  V.  Webber  377 

Say  V.  Barnes  851,  918 

V.  Barwich  171,  191 

Saye  &  Sele  v.  Jones  312 

Saycr  v.  Humphrey  248,  253 

Sayer's  Trusts  385 

Sayers,  Ex  parte  345,  835,  837 

V.  Hoskinson  540 

V.  Wall  95,  240 

Sayles  v.  Best  448 

V.  Smith  602  u 

Sayre  v.  Flourney  639,  642 

V.  Frederick  137 

V.  Townsends  132 

r.  Weil  82,  96 

Scadden  Flat  Co.  v.  Scadden    168,  231 

Scales  I'.  Baker  842 

V.  Maude  98,  99,  101 

Scarborough  v.  Borman  616,  648, 

652,  653 

V.  Parker  900 


CXXXVIU 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Scarisbrick  v.  Skelmersdale        160,  393 
Scarpelliui  v.  Acheson  640 

Scarsdale  v.  Curzon  364,  373,  389 

Scattergood  v.  Edge  377,  379 

V.  Harrison  432 

Scawcn  v.  Scawen  146,  147 

Schacfcr  v.  Purviance  322,  324 

Schaffcr  V.  Lauretta  311 

V.  Wadsworth  920 

Schaffner  v.  Grutzmacher  127 

Schafroth  v.  Ambs  652,  680 

Schammel  v.  Schammel  612 

Schanck  v.  Arrowsmith  576 

Scheffermeyer  v.  Schaper  181 

Scheibeler  v.  Albee  437  a,  815  b 

Schell,  In  re  918 

Schellinger  v.  Selover  144 

Schenck  v.  Barnes         96,  386  o,  815  a, 

827  a 

V.  Ellenwood  782 

V.  Schenck  264,  341,  344 

V.  Wicks  299 

Schermerhorn  v.  Barhydt         238,  562, 

566 

V.  Getting  391 

Schermerhorne  v.  Schenck        264,  344, 

419 

V.  Schermerhorne  581 

Scheuer  v.  Kelley  223 

Schey  v.  Schey  381 

Schieffelin  v.  Stewart  462,  471 

Schierloh  v.  Schierloh  132,  142 

Schiff  V.  Andress  223 

Schiffman  v.  Schmidt  310 

Schlaeper  v.  Gorson  127 

Schlcssinger  v.  Mallard  160 

Schley  v.  Brown  828 

V.  Lyon  311,  330 

Schloss  V.  Feltus  815  c 

Schluter  v.  Bowery  S.  Banks  51 

Schnebly  v.  Ragan  234 

Schneider  v.  Breier  663 

V.  Schneider  178 

V.  Sellers  828,  830 

Schneringer  v.  Schneringer  181 

Schnure's  Appeal  569 

Sehofield  v.  WoUey  863 

Scholefield  v.  Redfern  544,  551 

V.  Templar  172 

Scholey  v.  Goodman  672 

Scholle  V.  Scholle  195 

School  V.  Dunkleberger  117,  328 

V.  Kirwan  463 

V.  McGuUy  769 

School  Directors  v.  School  Directors  865 
School  District  v.  First  Nat.  Bank  122 

V.  Peterson  815  6 

School    Dist.    Greenfield   v.   First 

National  Bank  443 

School  Trustees  v.  Hoboken  42 

V.  Wright  84 

Schoolbred  v.  Drayton  5^1 

Schoolmeier  v.  Schoendelm  82 

Schoonmaker  v.  Sheely  359 

V.  Van  Wyke  428 

Schoonoven  v.  Pratt  602  x 

Schouler,  Petitioner       276  a,  705,  ilo, 
711,  iox 


Schrager  v.  Cool  133,  137 

Schreyer  v.  Schreyer  97,  104 

Schroder  v.  Schroder  872 

Schuknecht  v.  Shultz  377,  380,  392 

Schultze  V.  New  York  City  126 

Schumacher  v.  Draeger  82,  84 

Schumpert  v.  Dillard  815  c 

Schuster  v.  Schuster  143 

Schutt  V.  Large  222 

Schutter  v.  Smith  382,  391 

Schuyler  v.  Hoyle  639,  640,  641 

Schwartz  v.  Gerhardt  70,  836 

V.  Sears  602  cc 

Schwartz's  Estate  245,  765 

Schwind  v.  Ibert  82 

Scoby  V.  Blanchard  137,  165 

Score  V.  Ford  825 

Scott  V.  Atchison  456 

V.  Becher  816,  818,  827 

V.  Berkshire  County  S.  Bank      82 

V.  Bryan  511  c 

V.  Colburn  754 

V.  Cumberland  564 

V.  Davis  195,  428,  670 

V.  Dcpeyster  207 

V.  Dobson  546 

V.  Dorsey  918 

V.  Edgar  237 

V.  Freeland  196,  205,  602  w 

V.  Gamble  602  v 

V.  Haddock  850,  864 

V.  Harbeck  82 

V.  Harris  79,  226 

V.  Hastings  438 

V.  HoUingworth  551 

V.  Holman  126,  142 

V.  James  633 

V.  Kane  96 

V.  Knox  866 

V.  Mann  199 

V.  Moore  361 

V.  Nesbitt  71 

V.  NicoU  873 

V.  Orbinson  232,  237,  239 

V.  Perkins  546 

V.  Rand  275 

V.  Scott  541,  68S 

V.  Sierra  Lumber  Co.  828 

V.  Spashett  629,  632,  636 

V.  Steward  375,  766 

V.  Surnam  58,  239,  345 

V.  Thompson  210 

V.  Thorpe  55 

V.  Tyler      225,  512,  514,  516,  809, 

810,  811,  815 

V.  West  398 

Scott's  Estate  264,  269,  891,  894 

Scounden  v.  Hawley  325 

Scraggs  V.  Hill  232,  233 

Scranton  v.  Campbell  133 

Scribner  v.  Meade  206 

Scriven  v.  Tapley  645 

Scrivens  v.  No.  Easton  Bank        82,  96 

Scroggins  v.  McDougald  195 

Scroggs  V.  Scroggs  511  a 

Scroope  v.  Scroope  54,  146 

Scrope's  Case  511  c 

Scruggs  V.  Driver  41 


INDEX    TO    CASES    CITED. 
[References  are  to  sections] 


CXXXIX 


Scudder  v.  Crocker  918 

Scull  V.  Reeves  602  e,  602  m 

Scully  V.  Dclany         262.  419.  424,  440 

V.  Scully  878 

Sculthorpe  v.  Burgess  161 

V.  Tiffer  439 

Scurficld  V.  Howes  416,  419.  421. 

423,  424.  847 

Seaburn  v.  Seaburn  748 

Seacoast  R.  Co.  v.  Wood  206 

Seagrave  v.  Seagrave  674 

Scale  V.  Scale  366 

Seaman  v.  Cook  126,  127,  128.  132 

V.  Harmon  97.  104,  165.  213, 

324 

V.  Wood  385 

Seamans  v.  Gibbs  816  a 

Seamonds  v.  Hodge  82.  117,  119 

Sear  v.  Ashwell  103,  107 

Searing  v.  Searing  639.  643,  647 

Scarle.  In  re  548.  551 

V.  Law  96.  100 

Scars  V.  Att.-Gen.  701,  722,  728 

D.  Chapman  722.  729.  731 

V.  Choate  920 

V.  Cimningham  119 

V.  Livermore  782 

V.  Putnam  381,  382 

V.  Russell  312.  380,  383 

V.  Shafer  194.  201,  230 

V.  Smith  232,  237 

Seattle  v.  McDonald  262 

Seaver  v.  Fitzgerald  381 

V.  Lewis  562,  566 

Seaverns  v.  Presbyterian  Hosp.         790 

Seaving  v.  Brinkerhoff  592 

Second,  &c.  Church  v.  Desbrow        116 

Second  Cong.  Soc.  v.  First  Cong. 

Soc.  714,  724,  748 

Second  Cong.  Soc.  North  Bridge- 
water  V.  Waring  328 
Second  Univ.  Church  v.  Colegrove 

544,  545 
Security  Co.  v.  Snow  391,  503,  920 
Seddon  v.  Connell  878,  879 

Sedgwick  v.  Stanton  214 

Seegcr  v.  Leakin  358 

Seel(>y  v.  Jago  108 

Seeling  v.  Crawley  672 

Seers  v.  Hind  900 

Seesel  v.  Ewan  602  o 

Segond  v.  Garland  660 

Segrave  v.  Kirwan  181,  182 

Seguin's  Appeal  471 

Seibert  v.  Minneapolia,  &c.  Rv.  Co. 

760,  919 

Seibcrt's  Appeal  616.  715 

Seibold  v.  Chrisman  143 

Seichrist's  Appeal  206.  215 

Seidler's  Estate  459 

Seitzinger's  Estate  386  a 

Selatter  v.  Cottam  904 

Selby  V.  Alston  13.  347 

V.  Bowie  770 

V.  Cooling  768 

V.  Stanley  237.  239 

Selden  v.  Vermilyea  286 

Scldcn's  Appeal  82 


Sell  V.  West 

151 

Sclleck  V.  Thompson 

729 

748 

Sollew's  Appeal 

764 

Selliok  V.  Mason 

386  a 

Sells  V.  Delgado 

276  a 

503 

Selma  v.  Selnia 

232 

Selover  v.  Selover 

144 

Selph  V.  Howland 

681 

Selsey  v.  Rhoades 

206,  228 

229 

Selyard  v.  Harris 

877 

Semper  v.  Coates 

252 

Semphill  v.  Hayley 

512 

Scmple  V.  Bird 

232 

Senhouse  v.  Earle 

834 

Sergeant  v.  IngersoU 

218 

Sergison.  Ex  parte 

64 

336 

V.  Sealey 

605 

Servis  v.  Beatty 

232 

Seton's  Decrees 

283 

Scttombre  v.  Putnam 

126,  127 

129 

Severns's  Estate 

448 

Sewall   V.  Boston  W.  P. 

Co. 

814 

V.  Roberts 

104 

V.  Wilmer 

511  b 

Sewell  V.  Baxter 

139 

V.  Denn 

150 

V.  Moxsy 

101 

Sexton  V.  Holli.^ 

126 

Seymour  v.  Bull 

769 

V.  Delancey 

187 

V.  Freer  82.  863 

V.  McAvoy  386,  386  a 

V.  Milford.  &c.  Ry.  757 

Seys  V.  Price  611 

Shackleford  v.  Bank  of  Mobile  500,  591 

V.  Elliott  141 

Shaeffcr  v.  Sleade  173,  187 

Shafer  v.  Davis  184 

Shaffer  v.  Martin  846 

V.  Watkins  591 

Shakeshaft,  PJx  parte  848,  876 

Shales  v.  Shales  146,  147 

Shall  V.  Biacoe  232,  238 

Shallcross  v.  Oldham  204,  210 

Shallcross's  Estate  381 

Shaker's  Appeal  490 

Shanahan  v.  Kelly  729,  748 

Shankland's  Appeal        299,  305,  386  u 

Shanley  v.  Baker  160 

Shannon  v.  Bradstreet  484,  764 

V.  Canney  680 

Shapland  v.  Smith  298,  305,  312 

Shapleigh  v.  Pilsbury  299,  748 

Shapley  r.?Diehl  358 

Sharland,  hi  re  511  c 

Sharman  v.  Jacksoa  677,  920 

Sharp,  In  re  460 

V.  Leach  104 

■V.  Long  134,  215 

V.  Maxwell  676 

I'.  Pratt  499 

V.  Sharp  271,  273,  290,  294, 

337,  344,  503 

V.  Toy  634 

I'.  Wright  869 

Sharpe  v.  Cossent  388,  555 

V.  San  Paulo  Ry.  Co.        328,  330, 

401,  886 


cxl 


INDEX    TO    CASES    CITED. 
(References  are  to  sections.] 


Sharpless  v.  Adams 

829 

Shelton  v.  Laird 

226,  800 

V.  Welch 

438 

V.  Shelton 

75 

Sharpley  v.  Plant 

288 

V.  Watson 

369,  371 

Sharpsteen  v.  Tillow 

783,  785 

Shepard  v.  Creamer 

437  a 

Sharshaw  v.  Gibbs 

552,  554 

V.  Pratt 

137 

Shatter's  Appeal 

771 

Shephard  v.  Richardson 

602  d 

Shattock  V.  Shattock 

658, 

659,  663, 

V.  Stark 

468 

849 

Shepherd  v.  Bevin 

109 

Shattuck,  Matter  of 

729 

,  736,  748 

V.  Harris 

404,  415 

V.  Cassidy 

71 

V.  Mauls 

469 

V.  Freeman 

591,  593 

V.  McEvers            38 

,  98, 

261,  268, 

Shaw,  Ex  parte 

336,  337 

274 

,  401,  594 

V.  Borrer     476,  597 

789 

802,  915 

V.  Nottidge 

112,  116 

V.  Boyd 

34 

V.  Philbrick 

602  bb 

V.  Bunney 

199 

V.  White 

143 

V.  Burney 

97 

Sheppard,  In  re 

282 

V.  Conway 

891 

V.  Smith 

900 

V.  Cordis 

547 

Sheppard's  Trusts,  In  re 

275 

V   Delaware 

104 

Sheppards  v.  Turpin 

865 

11.  Galbraith 

320 

Shepperd  v.  Fisher 

380,  392 

V.  Huzzey 

546 

Sheratz  v.  Nicodemus 

234, 

235,  237, 

V.  Lawless 

112 

123,  907 

238,  239 

V.  Mitchell 

626,  641 

Sheridan  v.  Joyce 

808, 

832,  835, 

V.  Norfolk  Co.  Railway 

758,  761 

850,  926 

V.  Pickthall 

903  « 

V.  Welch 

602  A 

V.  Read 

143 

Sheriff  v.  Axe 

432,  904 

11.  Rhodes 

395 

V.  Butler 

671 

V.  Shaw 

129,  1.37 

V.  Neal 

206,  215 

V.  Spencer           157, 

158, 

225,  800, 

SherU  v.  Shuford 

918 

809, 

810, 

814,  846 

Sherley  v.  Sherley 

79 

V.  Tabor 

232 

Sherman  v.  Baker 

706,  715 

V.  Thackray 

191 

V.  Burnham 

654 

V.  Turbett 

890 

V.  Congregational  Miss.  I 

Boc.    7C8. 

V.  Weigh 

314,  315 

722,  729 

V.  Wright 

312 

V.  Dodge 

299 

Shaw's  Estate,  In  re 

484 

V.  New  Bedford  S.  Bank 

82 

Shaw's  Trusts,  In  re 

484 

V.  Parish          467,  602  x. 

848,  849, 

Shay  V.  Sessamon 

641 

851 

876,  877 

Shearer  v.  Loften 

602  e 

V.  Sherman 

569 

Shearin  v.  Eaton 

863 

V.  Turpin 

655 

Sheatfield  v.  Sheatfield 

361 

Sherrard  v.  Carlisle 

632 

Shee  V.  Hale 

388,  555 

V.  Harborough 

152,  427 

Sheehan  v.  Sullivan 

75 

Sherratt  v.  Bentley 

270 

271,  898 

Sheener  v.  Lautzerbeizer 

590 

Sherrington  v.  Yates 

640 

Sheet's  Estate               81, 

260, 

262,  264 

Sherwin  v.  Kenny 

305 

Sheffield  v.  Buckingham 

182 

Sherwood,  In  re 

432,  923 

V.  Orrery 

379,  516 

V.  Amer.  Bible  Soc. 

748 

V.  Parker 

263 

V.  Andrews 

98 

Sheidle  v.  Weishlee 

667 

V.  Read 

411.  602  aa 

Shelborne  v.  Inchquin 

226 

V.  Smith 

615 

Shelby  v.  Creighton 

195 

V.  Sutton 

228 

V.  Perrin 

237 

Shewell  v.  Dwarris 

648 

V.  Tardy 

126,  144 

Shcwen  v.  Vanderhorst 

474,  481 

Sheldon,  Matter  of 

594 

Shev's  Appeal 

262 

V.  Dodge 

590 

Shibley  v.  Ely 

540,  863 

V.  Dormer 

581,  597 

Shields  v.  Atkins 

433,  863 

V.  Easton 

734 

V.  Thomas 

828 

V.  Harding 

1.33 

Shiers  v.  Higgons 

191 

V.  Stockbridge 

729,  748 

Shillito  Co.  V.  McConnell 

686 

V.  Wildman 

863 

Shine  v.  Gough 

218 

Shellenberger  v.  Ransom 

181 

V.  Hill 

781 

Shelley  v.  Estes 

237 

Shingley,  In  re 

121 

V.  Nash 

88 

Shinn's  Estate 

460 

Shelley's  Case 

357,  370 

Ship  V.  Hettrick 

462 

Shelly  V.  Eldin 

315 

Ship  Warre,  In  re 

68 

Shelthar  i'.  Gregory 

672 

Shipbrook  v.  Hinchinbrook 

416.  419, 

Shelton  v.  A.  &  T.  Co. 

126 

421, 

423, 

424,  444 

V.  Homer 

195, 

308,  499 

Shipp  V.  Bowmar 

655,  656 

INDEX    TO    CASES    CITED. 
(References  are  to  sections.] 


cxli 


Bhipton  V.  Rawlins 

876 

Silverthorn  v.  McKiniflter 

205.  501. 

Shirk  V.  La  Fayette 

39,  55 

785 

V.  Trundle 

770 

771 

783 

Sime  V.  Howard 

82 

Shirkey  v.  Kirby 

764 

Simes  v.  Eyre 

877 

Shirley,  Ex  parte 

656 

Simmonds  v.  Borland 

636 

V.  Shattuck 

918 

V.  Palles 

593 

V.  Shirley              61, 

277, 

646, 

647. 

Simmons  v.  Drury 

569 

649 

653, 

666 

V.  Horwood 

648 

V.  SuRar  Refinery 

232 

239 

V.  McKinlock 

282 

Shirly  v.  Fcrrera 

585 

600 

V.  Oliver 

463,  466 

Shirras  v.  Caig 

219 

V.  Richardson 

305.  328 

Shively  v.  Bowlby 

41 

Sinmis  v.  Smith 

76,  m.  863 

Shoc-kley  v.  Fisher 

286 

Simon  v.  Barker 

714,  729 

Shoemaker  v.  Comm'rs 

41 

Simond  v.  Hilbert 

239 

V.  Smith 

132 

Simonds  r.  Simonds 

309 

V.  Walker 

324 

Simons  v.  Bedell 

79 

Shoofstall  V.  Adams 

75 

V.  S.  W.  Ry.  Bank 

242 

Shook  V.  Shook           343, 

411, 

414, 

884 

Simonsen  v.  Hutchinson 

670 

Shore  v.  Shore 

820 

Simpson  v.  Belcher 

144 

V.  Wilson 

733 

V.  Chapman 

430 

Short  V.  Battle 

647 

V.  Gutteridge 

244 

V.  Currier 

184 

V.  Jones 

605 

V.  Moore 

627 

639 

V.  Moore 

645 

V.  Wilson 

920 

V.  Munder 

232 

Shortel's  Appeal 

851 

V.  Sikes 

687 

Shortz  V.  Unangat 

334 

343 

V.  Simpson 

672.  673 

Shotwell  V.  Mott        699, 

730 

737 

748 

Simpson's  Appeal 

262 

V.  Murray 

184 

Sims  V.  Huntley 

602  hb 

Shovik  V.  Brown 

652 

J).  Lively 

698 

794,  795 

Shovelton  v.  Shovelton 

112 

120, 

888 

V.  Marryal 

67 

Shrewsbury  v.  Hornbury 

705 

V.  Rickets 

96,  240 

V.  Shrewsbury 

348 

581, 

597 

V.  Sims 

562 

Shrewsbury,  &c.  Railway  v. 

Lon- 

Simson  v.  Jones 

34 

don  &  N.  W.  Railway 

757 

Simson's  Trusts 

455 

Shrewsbury  School,  In  rt 

427 

Sinclair  v.  Jackson    349, 

402, 

404,  409, 

Shrimsher  v.  Newton 

237 

411. 

412, 

415,  528, 

Shropshire,  &c.  Co.  v.  Queen 

218 

529,  779 

Shryock  v.  Waggoner 

58 

279 

Singleton  v.  Lowndes 

919 

Shubar  v.  Winding 

589 

593 

V.  Scott         254,  408 

.  602  0.  602  a. 

Shultz's  Appeal 

169 

181 

602  X,  602  y 

602 

z,  602  aa 

Shuman  v.  Reigart 

641 

Sinnott  v.  Moore 

386  a 

V.  Shimian 

66 

Sires  v.  Sires 

262,  540 

Shumway  v.  Cooper 

611 

Sisson  V.  Shaw 

615,  618 

Shunk's  Appeal 

918 

Siter  V.  McClanachan 

640 

Shupe  V.  Bartlett 

144 

Siter's  Case                  633, 

640 

641.  643 

Shurtleff  v.  Witherspoon 

918 

Sites  V.  Eldredge 

252 

Shute  V.  Hinman 

828 

Sitwcll  r.  Bernard 

480 

550,  551 

Sickles  V.  New  Orleans 

72, 

744 

Rkahcn  v.  Irving 

133.  147 

Siddon  v.  Charrclls 

218 

Skcats  V.  Skeats 

143 

146.  147 

Sidle  V.  Walters 

77, 

137 

Skeats'  Settlement.  In  re 

297 

Sidmouth  v.  Sidmouth 

130, 

143, 

144, 

Skcggs  V.  Nelson 

238 

146, 

147 

Skehill  V.  Abbott 

132 

Sidney  v.  Shelley 

157 

Skett  V.  Whitmore 

86,  137 

Sieman  v.  Austin 

142 

Skillman  ?'.  Skillman 

147 

V.  Schunck 

142 

Skingley,  In  re 

121. 

477,  552 

Siemers  v.  Schrader 

890  o 

Skinner  v.  Dodge 

243 

Siggers  v.  Evans 

270, 

593, 

596 

V.  James 

126 

Sigourney  v.  Munn 

136 

V.  McDonall 

84 

Silcox  V.  Harper 

732, 

741 

?'.  Orde 

603 

Siling  V.  Hondrickson 

144 

V.  Skinner 

863 

Silk  V.  Prime 

667 

Skinner's  Appeal 

641,  642 

Silkstone  v.  Edey 

195 

Trusts.  Re 

119 

Sillibournc  v.  Newport 

511 

Skipwith  V.  Cunningham 

591,  592. 

Silsbury  v.  McCoon 

128 

593, 

602 

€,  602  aa 

Silverman  v.  Bullock 

831 

Skirwing  ?>.  Williams 

461 

V.  Kristufek 

309 

Skrino  i'.  Simmons 

226 

V.  Silverman 

673 

)'.  Walker 

65 

Silvers  v.  Potter 

76 

Skrymshcr  v.  Northcote 

157 

160, 397 

cxlii 


Slack  V.  Slack 

146,  147 

Slade  V.  Rigg 

761,  878 

V.  Van  Vechten 

197,  428 

Slaney  v.  Witney 

272 

Slanning  v.  Style 

541 

Slater  v.  Hurlbut 

121,  920 

V.  Oriental  Mills 

828 

V.  Ruddcrforth 

305,  358 

V.  Wheeler 

414,  877 

Slattery  v.  Watson 

386  a 

Slaymaker  v.  Bank 

641 

V.  St.  Johns 

75 

Slay  ton  v.  Barry 

624 

Slee  V.  Manhattan  Co. 

602  c,  602  n 

Sleech  v.  Thornington 

637 

Sleeper  v.  Iselin 

99 

Sleight  V.  Lawson 

862 

V.  Read 

676 

Slemon  v.  Schurch 

142 

Slevin,  In  re 

728 

V.  Brown 

311 

312,  475 

Slide  &  Spur  Gold  Mines  v. 

Sey- 

mour 

232,  237 

Sliker  v.  Fisher 

598 

Sloan  V.  Cadogan 

98 

101,  102 

?'.  Coolhaugh 

602  ee 

Sloan's  Appeal 

570 

Slocombe  v.  Glubb 

213 

Slocum,  Matter  of 

918,  919 

V.  Ames 

547 

r.  Barry 

819 

V.  Marshall 

77 

137,  201 

V.  Slocum 

127,  783 

Sloman  v.  Bank  of  England 

929 

Sloo  V.  Law                  276 

413 

427,  822 

Sloper  V.  Cottrell 

17,  105 

Small  V.  At  wood        173, 

639, 

841,  849, 
851,  874 

V.  Ayleswood 

260 

V.  Hatch 

137 

V.  Ludlow 

590 

V.  Marwood         270 

273 

585,  593 

V.  Small 

815  c 

Smart  v.  Bradstock 

885 

V.  Prujean 

93,  108 

Smcdley  v.  Varley 

202 

Smee  v.  Martin 

613 

Smeed,  Re 

615 

618,  619 

Smelting  Co.  v.  Reed 

429 

Smethurst  v.  Hastings 

458 

Smiley  v.  Dixon 

538 

V.  Pearce 

75,  171 

V.  Wright 

324 

Smilie  v.  Biffle 

621 

Smilie's  Estate 

633,  641 

Smith,  Ex  parte 

412 

In  re                90,  96, 

427, 

454,  460, 

503,  511 

517 

548,  847 

Matter  of 

864 

T.  Acton 

863 

V.  Anders 

602  66 

T.  Atkins 

759 

V.  Attersoll 

86 

V.  Atwood 

630 

V.  Aykwell 

214 

V.  Babcock 

171 

V.  Baker 

126 

mDEX   TO    CASES    CITED. 
[References  are  to  sectiona.) 
Smith 


V.  Bank  of  Scotland    171,  178,  179 


V.  Barnes 

821 

Bolden 

900,  926 

Bowen 

217,  828 

Boyd 

104 

Brotherline 

202,  203 

Bruning 

214 

Burgess 

223 

Burnham 

79,  127,  133,  137 

Butler 

234,  238 

Calloway 

863,  869 

Camclford 

126,  665 

Chesebrough 

99,  377 

Clay 

228,  229,  855 

Colvin 

602  66 

Combs 

828,  841,  863 

Conkwright 

591 

Cooke 

152 

Cowdery 

513,  517 

Cuff 

212 

Cuninghame 

395 

Dana 

545 

Davis 

259 

Death 

765 

Doe 

602  d 

Downey 

602  » 

Drake 

195,  205 

Dresser 

907 

Dunwoody 

380 

Equitable  Trust  Co.    596,  815  c 

Evans 

578 

Everett 

809 

Fellows 

550 

Floyd 

248,  503 

Foley 

578 

French 

849 

Frost 

602  u> 

Gaines 

874 

GiUam 

858 

Glover 

863 

Guyon 

795,  796 

Hall 

503 

Hardesty 

254 

Harrington 

699,  920 

Haynes 

766 

Henry 

677 

Herrell 

593 

Hewett 

677 

Hollenback 

134 

Hooper 

545 

Houblon 

248 

Howe 

680 

Howell 

82.  83,  85,  139 

Isaac 

428 

Isaacs 

386 

Jackman 

568 

Jameson 

17 

Kane 

627 

Kay 

210 

Kennard 

471 

Keteltas 

477,  552 

Kimbell 

378,  380 

King 

54,  151 

Kinney 

490,  771,  783 

Knowles 

250,  260,  261 

Lansing 

428 

Leavitt 

593 

Lockabill 

299 

Loewenstein 

448 

INDEX    TO    CASES   CITED. 
[References  are  to  sections.] 


cxliii 


Smith 

V.  Lowell 

591 

V. 

Lyne 

104 

V. 

McConnell 

414 

V. 

McCrary 

500 

V. 

McWhorter 

309,  310,  312 

V. 

Matthews 

79,  83,  633 

V. 

Maxwell 

361 

V. 

Metcalf 

312 

V. 

Miller 

195 

V. 

Mitchell 

171 

V. 

Moore 

386  a,  555,  815  a 

V. 

Oliver 

275,  724 

V. 

Patrick 

453,  454 

V. 

Patton 

77,  138 

V. 

Peacock 

75,  76,  86 

V. 

Phillips 

223,  347 

V. 

Pincombe 

185 

V. 

Porter 

559 

V. 

Portland 

873 

V. 

Proctor 

299,  309,  312, 
357 

V. 

Provin 

199,  602  p 

V. 

Ramsey 

127 

V. 

Rickards 

171 

V. 

Roberts 

347 

V. 

Sackett 

126,  133,  137 

V.  Savings  Bank  82 

V.  Security  L.  &  T.  Co.  299 

V.  Smith       49,  117,  118,  127,  134, 
137,  141,  144,  213,  270,  284, 
305,  438,  448,  453,  459,  465, 
540,  546,  591,  603,  764,  818, 
865,  890,  903  a,  924 
0.  Snow  882 

V.  Speer  82 

V.  Starr  310  a,  652,  653 

V.  Stowell  739 

V.  Sutton  260 

V.  Swan  408,  409,  779 

V.  Thompson  318 

V.  Tome  82 

V.  Towers  386  a 

V.  Townshend  195 

V.  Walter  217 

V.  Wheeler  270.  273,  806 

r.  Wildman  117,118,411,511 

V.  Wilkinson  82 

V.  Willard  149 

V.  Williams  598 

V.  Wood  855 

V.  Wright  206 

V.  Wyckofif  573 

V.  Young  57 

V.  Zaner  55 

Smith's  Estate  82,  96,  359,  544, 

545 

Smith's  Settlement,  In  re  282 

Smith  Granite  Co.  v.  Newall  232 

Smitheal  v.  Gray  126 

Smithsonian  Inst'n  v.  Meech  126, 

137,  144,  147 

Smullin  v.  Wharton  171,  181 

Smyth  V.  Burns  459 

V.  Carlysle  243 

V.  Phillips  AcadcTiy  742 

Smythe  v.  Smythe  540 

Snape  v.  Turton  511  c 

Sneed  v.  Deal  195,  538 


Sneer  v.  Stutz 
Sneesby  v.  Thorne 
Snelgrove  v.  Snelgrove 
Snell  V.  D wight 
V.  Elam 


261 

770,  809 

218 

21 

127 

V.  Payne  310,  677,  920 

Snelling  v.  Am.,  &c.  Mort.  Co.        330, 

873 

V.  McCreary  456 

V.  Utterback  137 

Snider  v.  Johnson  137 

V.  Udell  W.  Co.  151 

Snover  v.  Squire  448 

Snow  V.  Booth  863 

V.  Galium  918 

V.  Cutler  379 

V.  Teed  256 

Snowden  v.  Dunlavey  35 

Snowdon  v.  Dales  386,  555 

Snowhill  V.  Snowhill  610,  611,  639, 

641 

Snyder  i>.  Collier  82,  225 

V.  Parmalee  843 

V.  Safe  Dep.  &  Tr.  Co.  503 

V.  Snyder  648,  652,  676 

V.  Sponable  222 

Snyder's  Appeal  652,  670,  918  u 

Soames  v.  Martin  118 

Soar  V.  Ashwell  245,  246,  863,  865 

V.  Foster  144 

Socher's  Appeal  171 

Society  r.  Pelham  429,  468 

Soc,  &c.  V.  Hartland  299 

Soc.  for  Propagating  the  Gospel  v. 

Atty.-Gen.  701,  731,  736,  741 

Soc.  of  Orphan  Boys  v.  New  Or- 
leans 748 
Sockett  V.  Wray          52,  630,  633,  655 
Soggins  V.  Heard                          172,  863 
Sohier  v.  Eldredge          476  a,  551,  552, 
554,  556 
V.  Mass.  Gen.  Hosp.           610,  724 
V.  St.  Peter's  Church  748 
V.  Trinity  Church                121,  737 
V.  Williams  784 
Sohier  v.  Sohier  182 
Solinsky  v.  Lincoln  Sav'gs  Bk.          918 
SoUee  V.  Croft            836,  842,  864,  914, 

918 

Soller  V.  Chandler  428 

Solliday  v.  Bissett  918 

V.  Gruver  575 

Solliday's  Estate  448 

Somers  v.  Craig  647 

V.  Ovcrhulser  126 

Somerset,  In  re  452,  467,  849 

Somerset  Ry.  v.  Pierce  910 

Somes,  In  re  248,  254 

r.  Skinner  246  a 

V.  Stokes  200 

Sonley  v.  Clockmakers'  Co.  38,  45,  240 

Soohan  v.  Philadelphia  748 

Sopor  V.  Brown  251,  371 

Soresby  v.  HoUins  709 

Sothron,  In  re  93 

Sotoue  V.  Scott  843 

Soule  V.  Shotweli  815  c 

South,  Ex  parte  68 


cxliv 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


South  V.  Allcyne  310 

V.  Hay  426 

South  Scituate  S.  Bank  v.  Ross  766 
South  Sea  Co.  v.  WymondseU  861,  862 
South  Yorkshire,  &c.  Ry.  v.  Great 

Northern  Ry.  757 

Southampton  v.  Hertford         160,  393, 

395 
Southard  v.  Plummer  676,  678 

Southcomb  v.  Exeter  869 

Southern  Indiana  Express  Co.  v. 

U.  S.  Express  Co.  21 

Southern  R.  Co.  v.  Glenn  910 

South  Eastern  Ry.  Co.  v.  Jortin       751 

Southouse  V.  Bate  152,  157 

Southwell  V.  Ward  277,  287 

Souverbye  v.  Arden  103,  104,  161 

Sowarsby  v.  Lacy      582,  610,  787,  793 

Sowerby  v.  Clayton  461 

Sowers  v.  Cyrenius  701 

Sowles  V.  Butler  223 

Spalding  v.  Miller  487,  553 

V.  Shalmer  416,  597,  789,  796 

V.  St.  Joseph's  School        728,  729, 

748 

Spangler  v.  Newman  568,  576,  802 

Spangler's  Appeal  918 

Sparger  v.  Moore  322 

Sparhawk  v.  Buell     418,  422,  426,  612, 

618,  624 

V.  Cloon  386,  555 

V.  Sparhawk  275 

Spark's  Estate  262 

Sparks  v.  Hess  232 

V.  Kearney  602  p 

V.  Taylor  144 

Sparling  v.  Parker  439,  551 

Sparrow  v.  State  Exch.  Bank  225 

Spaulding  v.  Kendrick  122,  815  c 

Speakman  v.  Speakman  380 

V.  Tatem  268,  401,  881 

Spear  v.  Grant  242 

V.  Spear  453,  612 

V.  Tinkham         463,  468,  541,  547 

V.  Ward  680 

Spearman  v.  Foote  576 

Spears  v.  Taylor  237 

Speer  v.  Burns  132 

V.  Haddock  602  p 

Speidel  v.  Henrici  863 

Speight  V.  Gaunt       404,  409,  415,  441, 

457 
Speiglemyer  v.  Crawfort  173 

Spence  v.  Duren  171 

V.  Spence  305,  358 

V.  Whitaker  918 

V.  Widney  710 

Spencer,  In  re  126,  138,  347 

V.  Anon.  602  s,  602  x 

V.  Clarke  843 

V.  Ford  602  e 

V.  Hawkins  598 

V.  Hay  Library  Ass'n  729 

V.  Richmond  79,  86 

V.  Smith  420 

V.  Spencer  393,  398,  901,  918 

V.  Terrel  137 

V.  Weber  800,  814 


Spengler  v.  Kuhn 
Sperling  v.  Rochfort 
Spessard  v.  Rohner 
Spicer  v.  Ayres 
V.  Dawson 


274,  347,  779 
630 
315 
164 
652 


Spickernell  v.  Hotham  j69,  863 

Spies  V.  Chicago,  &c.  R.  Co.  886 

Spindle  v.  Shreve  72,  386  a,  815  a 

Spindler  v.  Atkinson  205,  428 

Spink  V.  Lewis  160 

Spinning  v.  Blackburn  681 

Spirrett  v.  Willows  164,  635,  649 

Spokane  County  v.  First  Nat.  Bank 

828 

Spooner  v.  Phillips  645 

V.  Whiston  212 

Spotswood  V.  Pendleton  610 

Spottiswoode  v.  Stockdale         585,  593 

Sprague  v.  Betz  768 

V.  Smith  762 

V.  Sprague  358 

V.  Tyson  660,  873 

V.  Woods  162,  299 

Sprague,  Petitioner  769 

Sprange  v.  Barnard  113,  116 

Sprigg  V.  Bank  of  Mount  Pleasant  226 

V.  Sprigg  162 

Spring  V.  Biles  256 

V.  Pride  195,  202,  670 

V.  Randall  386  a 

V.  South  Carolina  Ins.  Co.         685 

V.  Wood  worth  603 

Spring's  Appeal  460 

Spring's  Estate  398 

Springe  v.  Berry  683 

Springer  v.  Arundel  310  a,  652 

V.  Kroeschell  137 

V.  Springer  126,  865 

V.  Walters  232 

Springett  v.  Dash  wood  821,  900 

Springfield  H.  Ass'n  v.  Roll  212 

Sproule  V.  Bouch  545 

Spurgeon  v.  Collier  828 

Spurr  V.  Scoville  71,  72 

Spurrier  v.  Hancock  122 

Spurway  v.  Glynn  671 

Squire  v.  Dean  665 

V.  Harder  139,  162 

V.  Whitton  178,  179 

Squire's  Appeal    76,  135,  205,  206,  226 

Squires  v.  Ashford  634 

St.  Albyn  v.  Harding  188 

St.  Aubin  v.  St.  Aubin  556 

St.  George  v.  Wake  213 

St.  James  v.  Bagley  82,  117 

St.  James  Church  v.    Church  of 

the  Redeemer  207 

St.  James  Orphan  Asy.  v.  Shelbv    694, 

709,  729.  748 

St.  John  V.  Andrews  Inst.         384,  397, 

738 
V.  St.  John  214,  672,  673 

t'.  Turner  869 

St.  Johnsbury  v.  Morrill  828 

St.  John's  Church,  Jri  re  726 

St.  John's  College  v.  State  742 

St.  Louis  V.  Priest  779 

St.  Louis,  &c.  Co.  V.  McPeters         S46 


INDEX    TO    CASES    CITED. 
[References  are  to  sectiona.] 


cxiv 


St.  Louis  Union  Society  v.  Mitchell 

K2H 
St.  Mary's  Church  v.  Stockton  790,797 
St.  Patrick's  Church  v.  Daly  127 

St.  Paul  V.  Dudley  347 

St.  Paul  Trust  Co.  v.  Kittson  464 

V.  Strong  195 

St.  Paul's  Church  v.  Atty.-Gen.      399, 
711,  738 
St.  Peter's  Church  v.  Brown      46,  730, 

731 
St.  Stephen's  Church  v.  Pierce         269, 

341 
Staats  V.  Bergen  195 

V.  Bingen  847 

Stacey  v.  Elph  261,  267,  268,  269,  270, 
271,  273 
Stack  V.  Padden  660,  661 

Stackhouse  v.  Barnston    228,  229,  851, 

872 

Stackpole  v.  Arnold  226 

V.  Beaumont      512,  613,  514,  515, 

635,  636 

V.  Daverou  867,  872 

V.  Howell  272 

V.  Stackpole        471,  472,  900,  912 

Stafford  v.  Buckley  765 

V.  Stafford    76,  171,  206,  226,  851, 

870 

V.  Van  Renselaer  232 

Stafford  Charities,  In  re  733 

Stagg  V.  Bcekman  555 

Stahl  V.  Stahl  181 

Stahlschmidt  v.  Lett  481 

Staines  v.  Burton       711,  729,  736,  748 

11.  Morris  786 

Stainton  v.  Carson  Co.  185 

Stair  V.  Macgill  550 

Stall  V.  Cincinnati  137 

Stallings  v.  Foreman  195,  205 

Stambaugh's  Estate  443,  462 

Stamford,  In  re  290 

V.  Hobart  359 

Stamp  V.  Cooke  257 

Stamper  v.  Barker  34 

V.  Millar  414 

Standard  Mercantile  Co.  v.  Ellis      144 

Standard  Met.  Paint  Co.  v.  Prince 

Co.  484 

Standard  Oil  Co.  v.  Hawkins  828 

Standing  v.  Bowring  99 

Standish  v.  Babcock         828,    836,  837 

Stanos  V.  Parker  902 

Stanfield,  Matter  of  550,  575 

Stanford  v.  Mann  206 

r.  Marshall  657,  662,  667 

Stanger,  «e  248,510,511 

Stanhope  v.  Toppe  187 

Staniar  v.  Evans  815  6,  907 

Staniforth  v.  Staniforth  578 

Stanley  v.  Brannon  143 

V.  Colt  121,  737 

V.  Jackman  369 

V.  Leigh  364,  377 

V.  Lennard  305,  359 

V.  Stanley  359,  578 

Stanley's  Appeal  459,  851 

Stanley's  Estate  r.  Pence  429,  468 


Stansell  v.  Roberta  238 

Stanton  v.  Hall  388,  626,  647,  648, 

649 

V.  Helm  863,  864 

V.  King  526 

V.  Kirsch  677 

Stanwood  v.  Stanwood  50.S.  6.59, 

640 

Stapleton  v.  Langstaffe  610 

V.  Stapleton  96,  185,  .{73 

Stapylton  v.  Necley  476  a 

Starbuck  v.  Farmers'  Loan  Ass'n       96 

Starcher  Bros.  v.  Duty  392 

Stark  V.  Canady  126 

V.  Kirchgraber  38,  95,  240 

V.  Olesen  800 

Stark's  Estate  457 

Starke  v.  Starke  643.  863 

Starkev  v.  Brooks  151,  1.54 

V.  Fox  864 

Starkie,  Ex  parte  617 

Starnes  v.  Hill  358 

Starr  v.  Case  4.32,  919 

V.  Ellis  .347 

V.  Haskins  438,  831.  926 

V.  Starr  75,  76 

V.  Wright  33 

State  V.  Adams  742 

V.  Ausmus  710 

V.  Bank  of  Commerce         122,  828 

V.  Bevcrs  828 

V.  Boston,  &c.  Ry.  Co.  756 

V.  Brown  263 

V.  Bruce  828 

V.  Bryce  30 

V.  Cincinnati  766,  795 

V.  Commercial  Bank  757 

V.  Digges  843 

V.  Fay  847 

V.  Gerard  699,  731,  738,  748 

V.  Griffith  276  a.  732 

V.  Guilford  404,  415,  417,  418 

V.  Hamilton  County  Com'rs      200 

V.  Hearst  262 

V.  Hollingworth  550 

V.  HoUoway  171 

V.  Howarth  471 

V.  Johnson  594,  596 

V.  Kock  348 

V.  Krebs  628 

V.  Lord  413 

V.  Macalester  774 

V.  Mayor  of  Mobile  44 

V.  McGowen  700,  748 

V.  Mexican  Gulf  Ry.  757,  759 

V.  Midland  State  Bank  828 

V.  Miss.  Valley  Tr.  Co.     264,  269, 

341 

V.  Nctherton  476  a,  815  a 

V.  Nicols  262 

V.  Northern  Railway  759 

V.  Paup  184 

V.  Piatt  916 

V.  Prewett  694,  748 

V.  Real  Estate  Bank  588 

V.  Reigart  632 

V.  Robertson  639 

V.  Roeper  452 


cxlvi 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


State  V.  Rush 

47 

V.  Simpson 

450 

V.  Somerville,  &c.  Railway 

759 

V.  Standard  Oil  Co. 

21 

0.  Stebbins 

44 

V.  Tolan 

892 

V.  Wichita  County 

223 

State  Bank  v.  Campbell 

239 

V.  Frame 

815  c 

V.  McCabe 

122. 

225 

828 

V.  Marsh 

918 

State  Nat.  Bank  v.  Smith 

661 

State  of   Maryland  v. 

Bank 

of 

Maryland 

31 

588 

Stilt es  V.  Rives 

757 

Steacy  v.  Rice 

653 

Stead  V.  Clay 

668 

V.  Culley 

637 

V.  Nelson 

654 

658 

Stearnes  v.  Hubbard 

84.  85 

Stearns  v.  Brown 

463 

V.  Fraleigh 

59, 

274 

277 

V.  Mathews 

676 

V.  Newport  Hospital  42,  43 

V.  Palmer       17,  302.  312,  320,  328 
Stebbins  v.  Eddy  174 

V.  Morris  126 

Steel  V.  Cobham  818 

V.  Steel  647.  648 

Steel  Edge  S.  &  R.  Co.  v.  Man- 
chester S.  Bank  586 
Steele  v.  Kinkle                             167.  228 
V.  Levisay  794 
V.  Smith                                           359 
V.  Steele                                559.  907 
V.  Wallar  96 
V.  Worthington                              165 
Steere  v.  Steere           20,  76,  79,  82,  83, 
120.  133,  139 
StefRan  v.  Milmo  Bank                   815  c 
Stehman's  Appeal                                918 
Steib  V.  Whitehead                386  a,  815  a 
Steiff  V.  Seibert                                       252 
Steinback  v.  Junk  Bros.,  &c.  Co.    815  c 
Steinbeck  v.  Bon  Homme  Co.          195, 

206 
Stcinberger  v.  Potter  364 

Steinhardt  v.  Cunningham  82 

Steinke  v.  Yetzer  766 

Stcinman  v.  Ewing  680 

Steinmetz  v.  Haltkin  645 

Steinway  i'.  Steinway  894,  910 

Stell's  Appeal  415,  421 

Stenning,  In  re  828 

Stent  ».  Baillis  122 

Stephen  v.  Swann  55 


Stephens,  In  re 


308,  394,  558,  559, 

584 


V.  Bateman 

V.  Board  of  Education 

V.  Dayton 

V.  Green 

V.  Hotham 

V.  Howard's  Ex'r 

V.  James 

V.  Lawry 

■0.  Stephens 

V.  Trueman 


183,  187 
815  c 

392 
438,  926 

786 

613,  614,  615 

388,  555 

612.  615 

379 
111,  367 


Stephens  r.  Vonables 

V.  Yandle 
Stephenson  v.  Hayward 

V.  Heathcote 

V.  January 


438 

918 

585 
566 

782 


V.  Norris  253,  476  a,  511,  928 

V.  Stephenson  918 

V.  Taylor  171 

Stephenson's  Appeal  277 

Stephenson's  Estate  918 

Sterling  v.  Steriing  260,  672 

Stern  Bros.  v.  Hampton  386  a 

Sternfels  v.  Watson  82,  225,  800 

Sterns  Paper  Co.  v.  Williams  598 

Sterrett's  Appeal  416.  418,  421 

Stetson  V.  O'Sullivan  240 

Stevens,  In  re  544,  545,  547 

V.  Austen  340,  495,  770 

V.  Bagwell  29,  69 

V.  Beals  640 

V.  Bell  585,  593 

.  Buffalo  &  New  York  Ry.       709 

V.  Dethick  578 

z).  Earles  602 

V.  Ely  160 

V.  Gage  441,  914 

V.  Gaylord  266 

V.  Gregg               562,  568,  569,  570 

V.  Melcher          477,  487,  552,  553. 

915  a,  919 

V.  Olive  672.  673 

V.  Savage  636 

V.  South  Devon  R.  Co.  478 

V.  Stevens  144,  438 

V.  Wilson  126 

Stevens's  Estate  731 

Stevenson,  In  Matter  of  602  m 

V.  Agry  585 

V.  Brown  627 

V.  Crapnell  79,  162 

V.  Maxwell  918 

V.  Phillips  918 

V.  Smith  132 

Stevenson  Brewing  Co.  v.  Iba  831 

Stewart,  In  re  275 

V.  Ball  677 

V.  Brady  386 

V.  Brown  126,  132 

V.  Dailey  165 

V.  Douglas  181 

V.  Fellows  195 

V.  Hall  593 

V.  Hatton  234 

V.  Hubbard  192 

V.  Iglehart  165 

V.  Ives  232,  339 

V.  Jenkins  686 

V.  Kirkland  68,  438 

V.  McMinn  910 

V.  Madden  671 

V.  Noble  600 

V.  Pettus  343,  414 

V.  Phelps  545 

V.  Sanderson  467 

V.  Stewart  185,  668 

Stewart's  Appeal  643 

Stewart's  Estate  547,  863,  864 

Stewart's  Estate,  In  re  694,  729,  748 


INDEX    TO    CASES    CITED. 
(References  are  to  sectiooB.] 


cxlvii 


Sticken  v.  Schmidt 
Stickland  v.  Aldridge 


661 

84,  90,  93, 

216 

Stickney  v.  Sowcll      297,  453,  457,  461 
Stiffle  V.  Everitt  626 

Stigler's  Ex'r  r.  Stigler  612 

Stikeman  v.  Dawson  53 

Stile  V.  Griffin  232 

V.  Thompson  496 

Stileman  v.  Ashdown  54,  145,  146, 

149 

Still  V.  Ruly  49 

r.  Spear  386  a 

Stillwell  V.  Leavy  858.  860 

V.  Wilkinson  187 

Stimpson  v.  Fries  602  h,  602  an 

Stine  V.  Wilkson  602  p,  602  r,  782 

Stiner  v.  Stiner  172 

Stisser  v.  Stisser  358 

Stitt  V.  Rat  Portage  Co.    126,  133,  142 

Stock  V.  Moyse  122 

V.  Vining  903  a 

Stockbridgo  v.  Stockbridge        309,  766 

Stocken  v.  Dawson  904,  906 

V.  Stocken  612 

Stocker  v.  Foster  252,  540 

V.  Hutter  902 

V.  Whitlock  660,  685 

Stockett  V.  Ryan  104 

Stockley  v.  Stockley  185 

Stocks  V.  Dobson  438 

Stockton  V.  Anderson  875 

Stoddart  v.  Allen  693,  597 

Stodder  v.  Hoffmann  91 

Stogdon  V.  Lee  671 

Stoke's  Appeal  320 

Stoker  v.  Yelby  330 

Stokes  Trusts,  In  re  286 

Stokes  r.  Cheek  119 

V.  Clark  133 

V.  Payne  268 

V.  Sprague  96 

Stone  V.  Bishop  99 

V.  Clay  195,  466 

V.  Denny  172,  173 

V.  Farnham  919 

r.  Forbes  381,383,511c 

V.  Framingham  735,  743 

V.  Godfrey  185,  433,  863,  867 

V.  Grantham  590 

V  Griffin  240,' 748 

V.  Hiickett  97,  98,  204,  338 

v.  Hinton  786  a 

V.  Hoskins  181 

V.  Keyes  602  bh 

V.  Lidderdale  69 

V.  Littlefield  554 

V.  Manning  181 

V.  Marsh  846 

V.  Perkins  43 

V.  Stone  109,  110,  147 

7'.  Theed  533 

V.  Welling  221 

i>.  Wescott  386  b,  555 

Stone,  Petitioner  920 

Stonebraker  v.  Zollickoffer        540,  546 

Stonehouse  v.  Stonehouse  863,  864 

Stoner  v.  Commonwealth  642 


Stong's  Estate  402,  415,  418,  424 

Stonor  V.  Curwcn  361,  369,  371 

Stoolfoos  V.  Jenkins  170,  84!) 

Storm  v.  McGrover  132 

Storrs  II.  Barker  184 

V.  Benbow  385 

Storry  «.  Walsh  802,803,805,811 

Story  V.  Gape  260,  869 

V.  Kropsch  678 

I'.  Palmer  59,  277,  520 

V.  Winsor  219,  221 

Story's  University  Gift  735 

Stouffer  V.  Holeman  232 

Stoup  V.  Stoup  299 

Stout  V.  Apgar  386  o,  815  a 

V.  Betts  277 

V.  High  bee  594 

V.  Levan  640 

V.  Philippi  Manuf.  Co.                223 

Stover  V.  Flack  134,  142 

Stow  V.  Kimball  127 

Stowp  V.  Bowen  416 

StrafTord  r.  Powell  360 

Strain  v.  Walton  237 

Strange  v.  Fooks  851 

V.  .Smith  517,  519 

Strathedan,  In  re  736 

Stnitheden  and  Campbell,  In  re       705 

Strathmore  v.  Bowe  213 

Stratton  v.  Dialogue  126,  127 

V.  Edwards  82,  815  6 

V.  Grimes  511,  514 

V.  Physio-Medical  College        728, 

730   733 

Strauss  v.  Goldsmid  699!  702 

Strauss's  Appeal  232 

Straut,  Matter  of  873 

Strawbridge  v.  Strawbridge  358 

Strawn  v.  Trustees  476  a 

Street  v.  Gordon  112 

Strcit  V.  Fay  386 

Stretch  v.  Watkins  615,  616 

V.  Gowdry  918 

Stretton  v.  Ashmall  457 

Strickland  i'.  Symons  815  b 

V.  Weldon  732,  742 

Striker  v.  Mott  305 

Strimpfler  v.  Roberts  126,  137,  141, 

865 

Stringer  v.  Gamble  568,  576,  802 

V.  Harper  918 

Stringham  v.  Brown  602  ce 

Strode  v.  Russell  336 

Strong  V.  Brewer  546 

V.  Carrier  591 

V.  Glasgow  76 

V.  Ingraham  571 

V.  Lord  322 

V.  Perkins  93 

V.  Skinner  690,  591 

V.  Smith  642 

V.  Weir  104 

V.  Willis  268 

Strong's  Appeal  713,  729,  748 

Strother  v.  Law  602  n 

Stroud  V.  Burnett  562,  566 

V.  Grozer  671 

V.  Gwyer  429,  430,  551 


cxlviii 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Stroud  V.  Norman  511  a 

Stroughill  V.  Anstey  597,  768,  783, 

785,  796,  797,  800,  801, 
810,812 
V.  Gulliver  208 

Stroup  V.  Stroup  324 

Stuart,  In  re  460,  848 

V.  Bruere  550 

V.  Bute  603 

V.  Carson  562 

V.  Easton  694,  705,  748 

V.  Kirkwall  657,  658,  662 

V.  Kissam     195,  428,  647,  648,  654 
V.  Stuart  539 

Stubbing'  Adm'r  v.  Briggs  865 

Stubbs  V.  Gargan  630 

V.  Pitts  231 

V.  Roth  196 

V.  Sargon     112,  159,  253,  712,  715 
Stucky  V.  Stucky  132 

Studholme  v.  Hodgson  622,  903  a 

Stulz  Trusts,  In  re  388,  555 

Stump  V.  Gaby  199,  202,  227,  852 

Sturgeon  v.  Stevens  104 

Sturges  V.  Dimsdale  573 

V.  Knapp  280,  749 

Sturgis  V.  Champneys       626,  629,  632, 
633,  634 
V.  Corp  655,  670 

V.  Morse  863,  865,  872 

Sturt  V.  Mellish  17 

Sturtevant  v.  Jaques         157,  158,  159, 
225,  800,  814 
V.  Sarbach  586 

Stuyvesant,  In  re  283 

V.  Hall  241 

Styan,  In  re  438 

Stryer  v.  Freas  783 

Styles  V.  Guv  262,  419,  424,  440, 

453,  870 
Suarez  v.  De  Montigny  800 

Succession  of  Wilder  34 

Sudeley,  In  re  248,  383,  498,  506 

Sugden  v.  Crossland  274,  427 

Sugg  V.  Tillman  591 

Suir  Island  Charity  School,  In  re     737 
Sullivan  v.  Chambers  299 

V.  Latimer  269,  282,  860 

V.  Portland  R.  Co.      855,  862,  868 
V.  Sullivan  93,  133 

Sulphur  Mines  Co.  v.  Thompson  602/n 
Summers  v.  Higley  112,  117 

■0.  Moore  126 

Sumner  v.  Marcy  72 

V.  Staton  182 

T.  Sumner  672 

Sumrall  v.  Chaffin  774 

Sun  Dance,  &c.  Co.  v.  Frost  206 

Sunderland  v.  Sunderland  141,  147 

Supple  V.  Lawson  256 

Susquehanna  Bridge  Co.  v.  Gen- 
eral Ins.  Co.  754 
Susquehanna  Canal  Co.  v.  Bonham 

757 

Sussex  V.  Worth  528 

Sutcliffe  V.  Cole  152 

Sutherland  v.  Brush  421 

V.  Cook  449,  451,  551 


Sutherland  v.  Mead 

815  c,  828 

V.  Reeve 

831 

Sutliflf  V.  Clunie 

202  h 

Sutphen  v.  Fowler 

780 

Sutro's  Estate,  In  re 

711 

Sutton  V.  Aiken 

520 

V.  Cradock 

541 

V.  Hanford 

590 

V.  Jewke 

515 

V.  Jones 

199,  432,  530 

V.  MjTick 

917 

V.  Schonwald 

610 

V.  Sharp 

464,  468 

V.  Whetstone 

137 

Sutton  Colefield's  Case 

830 

Suydam  v.  Martin 

217,  591 

Swaine  v.  Perine 

554 

Swale  V.  Swale 

413,  818 

Swallow  V.  Binns 

580 

Swan,  In  re       384,  399, 

630,  736,  738, 

864 

V.  Frick  97 

V.  Ligan  220,  541 

Swarez  v.  Pumpelly  287 

Swarr's  Appeal  733 

Swartswalter's  Account  918 

Swartwout  v.  Burr  56 

Swartz  V.  Swartz  206 

Swasey  v.   Amer.  Bible  Soc.    699,  700, 

706,  748 

V.  Emerson  223 

V.  Little  796 

Swayne  v.  Lone  Acre  Oil  Co.  546 

Swearingin  v.  Slicer  592 

Swedesborough  Church  v.  Shivers    733 

Swedish-Am.  Bank  v.  First  Nat. 

Bank  596 

Sweeney  v.  Sampson  694,  700,  748 

V.  Smith  680 

V.  Sparling  133 

V.  Warren  248.  501,  783,  785 

Sweet  V.  Jacocks  206 

V.  Schliemann  497,  499,  500, 

505,  764 

V.  Southcote  222 

V.  Stevens  132 

Sweetapple  v.  Bindon        323,  324,  366 

Sweeting  v.  Sweeting  327 

Sweezy  v.  Thayer  611 

Sweigart  v.  Berks  556,  783 

Swift,  Ex  parte  613,  618 

V. 920 

V.  Davis  147 

V.  Gregson  256 

V.  Smith  864 

V.  Tyson  815  c 

Swinburne  v.  Swinburne  137,  142 

Swindall  v.  Swindall  471 

Swinfen  ».  Swinfen  348,  443,  446 

Swink  V.  Snodgrass  225 

Swinnock  v.  Crisp  618 

Swinton  v.  Egleston  160 

Swissholm's  Appeal  204,  209 

Switzer  v.  Skiles  84,  401 

Swoycr's  Appeal  463,  590,  786  a 

Syckle  v.  Kline  126 

Syester  v.  Brewer  864 

Sykes  v.  Boone  172 


INDEX    TO    CASES   CITED. 
[References  are  to  aectiona.] 


cxlix 


Sykea  v.  Hastings  432 

V.  Sheard  493,  778,  784 

Sykes's  Trust  657,  658 

Sylvester  v.  Jarman  337 

V.  Wilson  305 

Symes  v.  Hughes  214 

Syram's  Case  724 

Symson  v.  Turner  303.  305,  309 

Synge  v.  Hales  357,  360,  377 

V.  Synge  122 

Synnot  v.  .Simpson  593 

Sypher  v.  McHenry  197 

Syracuse  S.  Bank  v.  Porter         82,  248 


T. 


Tabb  V.  Archer 

34 

V.  Baird 

299,  303 

Tabele  v.  Tabele 

602  # 

Taber,  In  re 

568,  576 

V.  Willetts 

248,  501 

Tabor  v.  Brooks 

511,  511  a 

V.  G  rover 

13 

Taft  V.  Dimond 

79,  83 

V.  Providence,  &c. 

R.  Co 

545 

V.  Smith 

457.  459 

Taggart  v.  Baldwin 

640 

V.  Taggart 

364 

Taintor  v.  Clark        259,  499, 

500,  700, 

748, 

765,  921 

Tait  V.  Jenkins 

819 

V.  Lathbury 

766 

V.  North  wick 

600 

Taite  v.  Swinslead 

498 

Talbot  V.  Barber 

86 

V.  Bowen 

84 

V.  Calvert 

652 

V.  Cook 

438 

V.  Dennis 

640 

V.  Field 

511c 

V.  Mansfield 

822, 

823,  826 

V.  Marshfield 

474.  508 

V.  Radnor         272 

476  a 

922.  928 

V.  Scott 

818 

V.  Staniforth 

188 

Talbott  V.  Barber 

79 

Taliaferro  v.  Minor 

918 

V.  Taliaferro 

126 

133.  135 

Talley  v.  Ferguson 

118,  386  a 

V.  Starke 

610 

Tally  V.  Thompson 

676 

Tanaux  v.  Ball 

918 

Taner  ?;.  Ivie 

800 

Taney  v.  Fahnlcy 

358 

Tankard  v.  Tankard 

171.  215 

Tann  v.  Tann 

903  a 

Tanner  v.  Dancey 

892 

V.  El  worthy 

129 

,  196,  538 

V.  Hicks 

232 

V.  Skinner 

98 

Tanney  v.  Tanney 

195,  210 

Tanqueray-Willaume, 

In  re 

570,  601, 

783 

785,  789 

Tapley  v.  Butterfield 

814 

V.  Tapley 

509,  800 

Tappan  v.  Deblois 

694, 

705,  724, 
730,  748 

Tappcnden  b.  Burgeaa 

587 

Tarback  v.  Marbury 

590 

Tarbox  v.  Grant 

96. 

100.  103 

Tardiff  v.  Robinson 

535 

Tardus  v.  Puget 

364 

Tarkiugton  v.  Purvis 

815  c 

Tarleton  v.  Hornby 

848.  875 

V.  Vietcs 

84 

Tarlton  v.  Gilsey 

411 

Tarpley  v.  Poaze 

126 

Tarr  v.  Williams 

655.  660 

Tarrant  v.  Backus 

286 

Tarrant's  Trust,  In  re 

511c 

Tarsley's  Trust,  In  re 

648 

Tarver  v.  Tarver 

182 

Tasburgh's  Case 

630 

Tasker  v.  Small 

122.  874 

V.  Tasker 

32 

Tasker's  Estate 

448 

Tassey's  Trust 

652 

Tastor  v.  Marriott 

196 

Tatam  v.  Williams 

869 

Tate  V.  Connor 

863 

V.  Leithhead 

87.  105 

V.  Security  Co. 

438, 

831.  920 

Tatge  V.  Tatge 

226 

Tatham  v.  Drummond 

668,  709 

V.  Vernon 

357,  359 

Tatlock  V.  Smith 

585 

Tator  V.  Tator 

380 

Tatum,  Matter  of 

448 

Taussig  V.  Reel 

484.  528 

Tavenner  v.  Barrett 

886 

V.  Robinson 

921 

Taylor,  Ex  parte 

587 

In  re                    725. 

728, 

895.  904 

V.  Allen 

816.  818 

V.  Allhusen 

254 

V.  Alloway 

232 

V.  Alston 

144.  147 

V.  Ashton 

171 

V.  Atkina 

602  p 

V.  Austen 

633 

V.  Bacon 

117 

V.  Benham            64, 

131, 

336.  415. 

441,  602  m 

765.  855 

V.  Biddal 

379 

V.  Blakelock 

828 

V.  Boardman 

215 

V.  Bond 

547 

V.  Brown 

299 

305.  309 

V.  Buttrick 

104 

V.  Clark 

550,  551 

V.  Crompton 

871 

V.  Crook 

815  6 

V.  Davis 

437  a 

V.  Dickinson 

413 

V.  Galloway 

769 

V.  George 

112 

V.  Glanville     280.  476  a. 

667,  894, 

901 

922,  928 

V.  Gooche 

865 

V.  Harwell 

815  a 

V.  Haskell 

448 

r.  Hawkins 

811 

V.  Haygarth         157 

327 

,  434.  437 

V.  Henry 

82.  99 

V.  Hibbcrt 

550,  551 

cl 


Taylor  v.  Hopkins 
e.  Huber 
V.  Hunter 
V.  James 
V.  Keep 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


402 

920 

232,  237,  239 

109,  143 

83,  732 


V.  King  17,  328,  602  i,  602  aa 

V.  Lauer  596 

V.  Luoas  160 

V.  Luther  226 

V.  McKinney  232 

V.  Mahoney  594 

V.  Meads  656 

V.  Miles  126,  134 

V.  Millington  267 

V.  Mitchell  715 

V.  Morris  499 

V.  Phillips  605 

V.  Plumer  345,  835,  837,  842 

V.  Pownal  82,  95,  122 

V.  Pugh  213 

V.  Radd  226 

V.  Roberts  415 

V.  Root  892 

V.  Salmon  206,  885 

V.  Shelton  678 

V.  Shum  536 

V.  Stibbert  217,  828 

V.  Tabrum  781.  848,  876,  901 

V.  Taylor      54.  109,  139,  146,  147, 

162,  194,  201,  654,  667 

V.  Weld  226 

V.  Young  202  b 

Taylor's  Case  697 

Taylor's  Trusts,  In  re  545,  547 

Taylor  Orphan  Asylum,  In  re  205 

Tayman  v.  Mitchell  171 

Teague  v.  Dendy  618 

Teakle  v.  Bailey  206 

Teall  V.  Schroder  863 

V.  Slaven  855,  861 

Teasley  v.  Bradley  865 

Teas's  Appeal  573 

Tebbetts  v.  Tilton  126,  133 

Tebbitt  v.  Tebbitt  364 

Tebbs  V.  Carpenter  438,  440,  444, 

464,  465,  468,  471, 

527,  900,  902 

Tee  V.  Ferris  511  a 

Teele  v.  Bishop  of  Derry  725,  728, 

741 

Telford  v.  Barney  404,  779 

V.  Patton  92 

TeUer  v.  Bishop  678 

V.  HUl  299 

Tempest,  In  re  39,  55,  59,  277 

V.  Camoys  248,  511  a,  820  a 

Temple  v.  Ferguson        299,  310.  310  a 

V.  Hawley  34.  365 

Templeton  v.  Brown  122 

Tenant  v.  Brown  121 

Tendrill  v.  Smith  201 

Teneick  v.  Simpson  38,  231 

Tennant  v.  Stoney  693,  649 

Tennent  v.  Tennent  390 

Tenny  v.  Jones  355 

V.  Simpson  133 

Terhune  v.  Colton  576 

Terre  v.  Am.  Board  499.  510 


Terrell  v.  Matthews 
Terrett  v.  Crombie 

V.  Taylor 
Terry  v.  Brunson 

V.  Collier 

V.  Hopkins 

V.  Laible 

V.  Rector 


416.  423 

218,  222 
743 

633.  639 
298 
213 
768 

252,  540 


V.  Terry              453,  476,  605,  610, 
621,  915 
Tessier  v.  Wyse  562 
Te  Teira  v.  Te  Rocra  Tareha  76 
Texas  Moline  Plow  Co.  v.  King- 
man Co.  828 
Thacker  v.  Kay  254 
Thackery  v.  Sampson  380 
Thallheimer  v.  Brinckerhoff  68 
Thatcher  v.  Candee  274,  921 
V.  Churchill  86 
V.  Corder  268 
V.  Omans  298,  299,  302 
Thayer  v.  Badger  432,  919 
V.  Burr  545 
V.  Daniels  438,  831,  926 
V.  Dewey  452,  459,  460 
V.  Fairchild  476  a 
V.  Gould  849 
V.  Thayer  511  6 
V.  Wellington  88,  90,  93,  272 
The  Skinners'  Case  693 
Thecbridge  v.  Kilburn  363 
Thelluson  v.  Woodford  379,  394,  737 
Theological  Ed.  Soc.  v.  Att'y-Gen.     739 
Theriot,  In  re  276 
Thetford  School  693,  725 
Thicknesse  v.  Vernon  136 
Thiebaud  v.  Dufour  261  a 
Third  Nat.  Bank  v.  Lange  225 
V.  Stillwater  Gas  Co.  828 
Thomas,  In  re  477,  548 
V.  Bennett  665 
V.  Brinsfield  863 
V.  Bowman  433 
V.  Churchill  79 
V.  Chicago  143,  144 
V.  Dunning  873 
V.  EUmaker  704,  706,  710 
V.  Folwell  661 
V.  Glendinning  863 
V.  Gregg  544,  545 
V.  Higham  282 
V.  Hole  257 
V.  Jenks  591,  592 
V.  Kelsoe  641 
V.  Kennedy  239,  627,  632 
V.  McCann  171,  172 
V.  McCormack  162 
V.  Merry  75,  79,  86,  863 
V.  Oakley  871 
i>.  Scruggs  404,  420 
V.  Sheppard  189.  627.  628 
V.  Standiford  137 
V.  Stone  221 
V.  Thomas  388.  858,  863,  871.  872 
V.  Townsend  774 
V.  Walker  126 
V.  Williams  213 
V.  Wright  511  c 


INDEX    TO    CA.SE8    CITED. 
(References  are  to  sectioDs.] 


cii 


Thomas  Machine  Co.  v.  Voelker     328, 

330 

Thomassen  v.  Van  Wyngaarden    437  b 

Thome  v.  Allen  894,  910 

Thomman's  Estate  448 

Thompson,  In  re        429.  468,  918,  919 

ii.  Ballard  920 

V.  Beaseley  654 

V.  Blackstone  770,  787 

V.  Blair  229,  230,  863 

V.  Borg  223 

V.  Branch  134 

V.  Brown  465 

V.  Conant  299,  310  a 

V.  Corbv  699 

V.  Crump  358 

V.  Ellsworth  639 

V.  Finch  402,  416,  418,  850 

V.  Fisher  359 

V.  Ford  330 

V.  GaUlord  765 

V.  Galloupe  518 

V.  Garwood  611  c 

V.  Gibson  299 

V.  Grant  337 

V.  Griffin  612 

r.  Hale  731 

V.  Harrison  851 

V.  Houze  602  gg 

V.  Leach  259,  270 

V.  Lcdiard  750 

V.  McDonald  918 

V.  McGaw  869 

V.  McKissick  113,  253 

V.  Maddux  815  c,  828 

V.  Marley  75,  84,  128,  181 

V.  Meek  270 

V.  Murray  48 

V.  Norris  251 

V.  Parker  128 

V.  Quimby  93 

V.  Sanders  299,  300,  310 

v.  Shakespear  710 

V.  Shaw  592,  593,  602 

v.  Simpson  361,  833,  860,  867 

V.  Spiers  438 

V.  Thomas  66 

V.  Thompson        75,  109,  134,  143, 

146,  166,  275,  324, 

526,  699,  700,  712 

V.  Tucker-Osborn  122 

V.  Wheatley  195 

Thompson's  Appeal  127,  128 

Thompson's  Ex'r  v.  Brown       729,  748 

Thomson  v.  Clydesdale  Bank  122 

Thomson's  Estate  545 

Thong  I'.  Bedford  317 

Thorby  v.  Yeats  654,  667.  889, 

900,  901 

Thorn  v.  Xewman  347 

Thornber  r.  Wilson  701 

Thornborough  v.  Baker  226 

Thorndike  v.  Hunt  828 

('.  Loring  393,  737 

Thome  v.  Cann  347 

r.  Foley  863 

c.  Heard  861,  864 

Thorner  r.  Thorner  134 


Thornhill  r.  Gilmer  602  i' 

Thorington  r.  Thorington  610 

Thornton  v.  Boyden  78L' 

V.  Ellis  450.  45  > 

V.  Gilman  245 

V.  Henry  84 

V.  Howe  700 

V.  Irwin  602  r 

V.  .Jarvin  199 

V.  Knox  235,  237.  239 

V.  Stokill  842 

V.  Wilson  703 

V.  Winston  270 

Thorp.  In  re       429,  462,  463.  464.  46<^ 

V.  Fleming  737 

V.  Jackson  87s 

V.  McCallum  195.  198,  4.30 

V.  Owen  117 

Thorpe  v.  Owen  86,  96,  118,  110 

Thouron's  Estate  91S 

Thrasher  v.  Ballard  253,  511  >> 

Throckmorton  v.  O'Reilly  84 

V.  Throckmorton  144 

Thrupp  V.  Collett  715 

V.  Harmon  GQri 

Thruxton  v.  Att'y-Gen.  75,  509  /* 

Thum  V.  Wolstenholme  127,  837 

Thurston  v.  Dickinson  552 

V.  Essington  fj20 

t'.  Prentiss  602/,  602  p 

V.  Thurston  552,  610 

Thurston,  Petitioner  104 

Thynn  v.  Thvnn  181,  182,  22G 

Tibbits  V.  Tibbits       112,  113,  116,  123 

Tichenor  v.  Brewer  729,  748 

Tidd  V.  Lister            329.  526,  540,  626. 

634,  818 

Tierman's  Ex'r  v.  Security  B'ld'g 

Ass'n  828 

Tiernan  v.  Bean  232,  23S 

V.  Poor  97 

V.  Rescaniere  855 

V.  Roland  2.'-!] 

I'.  Thurman  237,  239 

Tierney  v.  Fitzpatrick  82 

V.  Moody  305 

V.  Wood  83,  10.''. 

Tiffany  v.  Clark  197,  20', 

Tiffin  V.  Longman  2.")>^ 

Tilbury  v.  Barbut  3S() 

Tilden  v.  Green  99,  729.  74s 

Tilford  V.  Torrey  ]l'7 

Tillaux  r.  Tillaux  102 

Tilley  v.  Bridges  871 

Tillinghast  v.  Bradford  386  n.  555 

0.  Champlin  414 

r.  Coggeshall    324,  ;>61.  476  n,  928 

Tillison  v.  Ewing  861 

Tillman  v.  Banks  310,  315 

Tillott,  In  re  177 

Tilt,  He  152,  160 

Tilton  V.  Davidson  347,  3SG  a,  920 

r.  Hunter  241 

('.  Tilton  84,  18«> 

Timbers  v.  Katz  6.39 

Timson  r.  Ramsbottom  438 

Tinchrr  r.  Arnold  698.  700,  7.i^ 

Tindull  i\  Harkinson  17.'< 


clii 


INDEX    TO    CASES    CITED. 


[References  are  to  sections.] 


Tindall  v.  Peterson 
Tinnen  v.  McCane 
Tingier  v.  Chamberlin 
Tingle  v.  Fisher 
Tinsley  v.  Tinsley 
Tippetts  V.  Walker 
Tipping  V.  Power 
Tipton  V.  Powell 
Tison  V.  People's  Sav.  Bank 


Titchenell  v.  Jackson 
Titcomb  v.  Currier 

V.  Morrill 
Title  Ins.  Co.  v.  Ingersoll 
Titley  v.  Durant 

V.  Wolstenholme 

Tohin  V.  Spann 
Toby  V.  McAllister 
Todd,  Matter  of 

V.  Buckman 

V.  Lee 

V.  Moore 

V.  Munson 

V.  Todd 

V.  Wilson 
Toder  v.  Sansom 
Toker  v.  Toker 
Tolar  V.  Tolar 
ToUemache  v.  Coventry 
Toller  V.  Carteret 
Tolles  V.  Wood 
Toman  v.  Dunlop 
Tombs  V.  Rock 
Tomkyns  v.  Ladbroke 
Tomlin  v.  Hatfield 
Tomlinson  v.  Dighton 

V.  Steers 
Tompkins  v.  Mitchell 

V.  Powell 

V.  Tompkins 

V.  Wheeler 

V.  Willan 
Tompkyn  v.  Sandys 
Toms  V.  Williams 
Tongue  v.  Nutwell 


554 

863 

391 

438,  831,  926 

126 

757 

892 

151,  165 

438, 

831,  926 

82 

786  a 

81,  162 

828 

672 

294,  339,  340, 

494,  495 

624 

232,  237 

918 

592,  602 

660 

205 

79 

562 

901,  904 

395 

98,  104 

98,  104,  109,  161 


373 

71 

815  a 

523 

573 

635 

413 

511  b,  657 

347 

136.  238,  337 

218 

569 

585,  593 

315 

248 

391 

380 


Topham  v.  Duke  of  Portland  511, 

511  a 
Toppan  V.  Ricomio  816 

Torbett  v.  Twining  649 

Toronto  G.  T.  Co.  v.  Chicago,  &c. 

R.  Co.  70,  71,  328,  878 

Torpy  V.  Betts  391 

Torrey  v.  Bank  of  Orleans         129,  206 

V.  Buck  171,  180 

V.  Deavitt  243 

Totham  v.  Vernon  100 

Totten,  Matter  of  82,  96 

Tottenham,  In  re  196 

Tourney  v.  Sinclair  673 

Tourville  v.  Naish  221 

Tower  v.  Bank  of  River  Raisin         588 

Tower's  Estate,  In  re  391 

Towers  v.  Hagner  664,  665 

V.  Moore  226 


Towle  V.  Doe 
V.  Ewing 
V.  Mack 


380,  392 

511c 

910 


Towle  V.  Nesmith 

V.  Swasey 

V.  Wadsworth      126,  132 

V.  Wood 
Towler  v.  Towler 
Towne  v.  .(\xnmidown        262, 


176 
855.  861 

259, 


Townend  v.  Townend        429 
Townley  v.  Bidwell 

V.  Bond 

V.  Sherborne       334,  412, 

Townsend,  Ex  parte 
V.  Barber 
V.  Blanchard 
V.  Cams 
V.  Early 
V.  Fenton 
V.  Hagar 
V.  Townsend 
V.  Wilson  344,  414, 

V.  Windham 
Townshend  v.  Brooke 

V.  Champenown 

V.  Frommer 

V.  Stangroom 

V.  Townshend 

V.  Westacott 
Townson  v.  Tickell 
Tracy,  Matter  of 

V.  Gravois  Rd.  Co. 

V.  Keith 

V.  Sackett 

V.  Strong 

V.  Tracy 
Trafford  v.  Boehm  380, 

462, 

V.  Trafford 

V.  Wilkinson 
Trafton  v.  Black 
Trammel  v.  Inman        76,  82, 
Tramp's  Case 
Trans.  University  v.  Clay 
Traphagen  v.  Levy 
Trapnal  v.  Brown 
Trask  v.  Donaghue 

V.  Sturges  248, 

Travell  v.  Danvers 
Travers  v.  Townshend 

V.  Wallace 
Travinger  v.  McBurney 
Travis  v.  Illingworth 
Tread  well  v.  Cordis 

V.  Salisbury  Mills 

V.  Treadwell 
Treat  v.  Peck 

Treat's  App.  38,  720, 

Treats  v.  Stanton 
Tregonwell  v.  Sydenham 

160,  380,  385, 
Trembles  v.  Harrison 
Tremper  v.  Burton 
Trench  v.  Harrison     126,  127 
Trenholme,  Ex  parte 
Trent  v.  Hanning 

V.  Harding 

V.  Trent 


699,  731 

899 
,  133,  206 
82 
248,  252 
417.  420, 
426 
,  430,  464 
704 
267 
415,  416. 
417,  419 
402,  405 
422 
223 
701 
388 
226 
846 
472 
492,  505, 
768,  783 
68,  665 
891,  894 
349 
248 
,  185,  226 
,  863,  865 
149 
,  270,  273 
552.  554 
910 
680 
189 
556 
570 
455,  460. 
,  848.  877 
373 
229 
729,  748 
,  299,  310 
486 
466 
476  o 
85 
259,  262 
,  448,  783 
275 
901 
358 
214 
290,  291 
499 
757 
864 
768 
,  724,  748 
330 
151,  152. 
390.  396 
55 
143,  147 
,  138, 842 
126 
312 
309 
569 


INDEX    TO    C.\aES    CITED. 
[References  are  to  sections.] 


cliii 


Treuton  Ranking  Co.  v.  Woodruff  G47 
Trenton  Trust  Co.  ».  Donnelly  547 
Trephagen  v.  Burt  1:^7 

Trovunion  v.  Morse  21!) 

V.  Vivian  622 

Trevele  v.  Coke  536 

Trevelyan  v.  Charter  204,  229,  2:i0 
Treves  v.  Townshend  404,  468 

Trevett  v.  Prison  Ass'n  747 

Trevor  v.  Trevor       347,  361.  369,  371, 
390.  82JS,  834 
Trexler  v.  Miller  182 

Trezavant  v.  Howard  64 

Tribble  v.  Oldham  235 

Trice  v.  Comstock  206,  221 

Trickey  v.  Trickey  397 

Trim's  Estate  729,  748 

Trimlestown  v.  Colt  584 

V.  Hammil  468 

Trimmer  v.  Bayne  150 

Trimmer  Church  v.  Watson  559 

Tringham's  Trusts,  In  re  312,  357 

Trinidad  v.  Milwaukee,  &c.  Co.  223 
Trinity  College  v.  Brown  326 

Trinity  M.  E.  Church  v.  Baker       729, 
736,  748 
Triplett  v.  Jamson  918 

Tripp  V.  Frazier  160,  575 

Tritt  V.  Col  well  640 

V.  Crotzer  75,  77,  83 

Troll  V.  Carter  75,  76 

Trollop  V.  Linton  34,  511  c 

Trost  V.  Dingier  189 

Trot  V.  Vernon  112,  569,  570 

V.  Dawson  907 

Trotter,  Matter  of  391 

V.  Blocker  60,  65 

V.  Erwin  232,  234 

Trout  r.  Pratt  511 

Troutman    i".    De  Boissiere,  &c. 

Ass'n  700,  705,  710 

Trowcr  v.  Knightley  498 

Troy  V.  Haskell  45 

V.  Troy  610 

Troy,  &c.  Railway  v.  Kerr  757 

Troy  City  Bank  v.  Wilcox  246  a 

Truebody  v.  Jacobson  232,  237 

Truell  V.  Tysson  783 

Truesdell  v.  Calloway  217 

V.  Phila.  Tr.  Co.  837  a,  815  6 

Trull  V.  Bigelow  218,  222 

V.  Eastman  188 

V.  Trull  814 

Truluck  r.  People  222 

Trust  Co.  V.  Railroad  918 

Trustees  v.  Wright  232 

Trustees,  &o.  v.  Atlanta  437  a 

V.  Augusta  331,  554 

i).  Chambers  748 

V.  Clay  466 

V.  Gleason  873 

V.  Grcenough  919 

V.  .Jacksi^n  8(iuare  Church  151,729 

V.  Prentiss  602  n 

Trustees  of  Hillsdale  Coll.  v.  Wood  112 

Trustees  of  Phillips  Acad.  v.  King     42 

Trustees     of     Smith's     Char.     v. 

Northampton  508,  724 


Trustees  of  Theol.  Sera.  v.  Kellogg  748 
Trustees  of   Washburn   Coll.   v. 

O'Hara  700,  729,  748 

Trusts  of  The  Abbott  Fund.  In  re   150 

Trutch  I'.  Laniprell  402 

Tryon,  In  re  270,  901 

ti.  Sutton  640 

Tubb  t'.  Fowler  645,  546 

Tuck  V.  Knapp  347 

Tucker,  In  re  453,  454 

V.  Andrews  213,  627 

V.  Baldwin  254,  783 

V.  BosweU  650,  551 

V.  Burrow  144,  147 

V.  Curtin  873 

V.  Ciordon  641 

V.  Guest  680 

V.  Horneman  476  a,  928 

v.  Johnson  309 

V.  Kayess  162 

V.  Moreland  33 

V.  Phipps  183 

V.  Seaman's  Aid  See.  46,  93, 

730,  748 

V.  State  261  a,  454 

V.  Tucker  330,  863 

r.  Zimmerman  815  b,  87.'3 

Tudor  V.  Samyne  653 

V.  Vail  511  c 

Tuffnell  V.  Page  739 

Tullett  V.  Armstrong  646,  648,  652, 

653,  657,  668,  670,  671 

r.  Tullett  605,611 

TuUock  I'.  Hartley  71 

Tunnard  v.  Littell  133 

Tunno,  Ex  parte  276,  282,  297 

Tuustall  I'.  Boothbay  69 

V.  Trappes  222 

Tupper  V.  Fuller  554 

Tupple  V.  Viers  232 

Turnage  v.  Green  918 

Turnbull  v.  Gadsden  171,  174 

V.  Pomcroy  432,  919 

Turner,  Ex  parte  240,  795,  802 

In  re  309,  460,  848 

V.  Buck  340 

V.  Butler  195 

V.  Corney  402,  821,  912 

V.  Da\'i3  633 

V.  Flagg  603 

V.  Frampton  476  a,  928 

V.  Fryberger  195 

1).  Harvey  177,  180,  770 

V.  Hill  196 

V.  Hoole  212 

V.  Hoyle  794 

I'.  .laycox  585 

V.  Johnson         602  g,  602  n,  60J  i/. 

602  hb 

V.  King  171 

r.  Laird  560 

V.  Maule  279.  292.  927 

V.  Newport  556  a 

V.  Ogden  701 

1'.  IVttigrew  127.  836 

V.  Russell  160 

V.  Sargent  360,  369,  375 

r.  Sawyer  129,  210 


cliv 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


Turner  v.  Smith  864 

V.  Turner  184.  456,  616,  619 

V.  Wardle  260 

Turner's  Case  633,  653 

Turney,  In  re  381 

t'."  Williams  468 

Turnley  v.  Keliey  647 

Turpin  v.  Sanson  456 

Turquand  v.  Marshall  467 

Turvin  v.  Newcome  393 

Tusch  V.  German  S.  Bank  82 

Tustin's  Appeal  598 

Tuthill  V.  Tracy  602  bb 

Tutt  V.  R.  R.  Co.  437  a 

Tuttle  V.  First  Nat.  Bank      437  a,  764 

V.  Fowler  641 

V.  Gilmore  452 

V.  Merchants'  Nat.  Bank  282,  594 

V.  Robinson  918 

V.  Woolworth  476  a 

Tuttle's  Case  547 

Twaddell's  Appeal  458,  459,  914 

Tweddell  v.  Tweddell  201,  614 

Tweedy  v.  Urquhart  277,  296 

Twisden  v.  Wise  639,  640 

Twisleton  v.  Thelwell  747,  892 

Twitchell  v.  Drury  247  a 

Twohy  Mercantile  Co.  v.  Meibye    828 

Twopenny  v.  Peyton  119,  555 

Twynne's  Case  590 

Twypont  v.  Warcup  174 

Tyack  v.  Berkeley  117 

Tyars  v.  Alsop  202  a 

Tyford  v.  Thurston  926 

Tygart  v.  Wilson  196,  538 

Tylden  v.  Hyde  499,  501,  787,  803 

Tylee  v.  Tylee  818 

Tyler,  In  re  384,  736 

V.  Black  171,  173,  184 

V.  Deblois  263 

V.  Herring  764,  779 

V.  Lake  348.  648,  649 

V.  Sanborn  195,  206 

V.  Tallman  570 

V.  Tyler  82.  86.  212,  213 

V.  Webb  222 

Tyree  v.  Williams  780 

Tyrrell  v.  Hope  310.  648 

V.  Marsh  784 

V.  Morris  225,  809 

TjTrell's  Case  161,  301 

T>Tson  V.  Mattair  676 

TjTwhitt  V.  Tyrwhitt  347,  358 

Tyson  v.  Applegate  873 

V.  Blake  546 

V.  Jackson  574 

V.  Latrobe  768 

V.  Mickle  780.  784 

V.  Passmore  38.  231 

V.  Sinclair  358 

Tyte  V.  Willis  380 


U. 

Ubhoff  71.  Brandenburg 
Udal  V.  Udal 
Udell  V.  Kenny 


404,  411 

511  c 

628,  630,  645 


Uhler  V.  Semple  815  c 

Uhrich  V.  Beek  221 

Ullraan  v.  Cameron         104,  252,  386  a 
Ulman  v.  Barnard  243 

Ulster  Building  Co.,  In  re  828 

Unckles  v.  Colgate  21 

Underbill  v.  Horwood        186,  187.  192 
V.  Morgan  _  843 

Underwood  v.  Boston  Five  Cents 

S.  Bank  843 

».  Cave  252,511c 

V.  Curtis  391,  4iS 

V.  Hattou  846,  924 

V.  Stevens  417,  419,  423,  424, 

444,  466,  467,  849 

Unger  v.  Mellinger  122,  646 

Uniacke,  In  re  259 

V.  Giles  103 

Union  Bank  v.  Baker  130 

V.  Jacobs  754,  757 

V.  Mechanics'  Bank  126 

V.  Murray-Aynsley  122 

Union  Bank  of  Tennessee  v.  EUi- 

cott  588 

Union  College  v.  Wheeler  126,  132 

Union  Life  Ins.  Co.  v.  Spaids  828 

Union  Nat.  Bank  v.  Goetz  828 

Union  Pac.  Ry.  Co.  v.  Artist  710 

Union  Safe  Dep.  Co.  v.  Dudley     550. 
556,  556  a,  575 
Union  Trust  Co.,  Matter  of      918,  919 
Unitarian  Society  v.  Woodbury         79, 

82,  138 

United  Nat.  Bank  v.  Weatherby      828 

United  Rys.  &  Elec.  Co.  v.  Rowe    oSG 

United  States  v.  Addyston  Co.  21 

V.  Coffin  178.  194,  202 

V.  Joint  Traffic  Ass'n  21 

V.  Trans-Missouri        Freight 

Ass'n  21 

V.  E.  C.  Knight  Co.  21 

V.  Vaughn  438 

U.  S.  Ins.  Co.  V.  Schriver  222 

U.  S.  Trust  Co..  Matter  of  82,  96 

V.  Poutch  503 

V.  Sober  398 

V.  Stanton  437  a 

V.  Tobias  556 

Universalist  Conven.  ».  May  728 

Univ.  Soc.  V.  Fitch  724 

University  v.  Bank  863,  865 

V.  Fay  743 

University  of  Louisville  v.  Ham- 
mock 710 
University  College,  In  re  743 
Univ^ersity  College  of  Loudon  v. 

Yarrow  704,  738 

Unrich  v.  Unrich  195 

Updegraph  v.  Commonwealth  697 

Upham  V.  Varnev  297,  299,  312 

V.  Wyman  859 

Uppington  v.  BuUer  202 

Upshaw  V.  Hargrove  220,  232,  239 

Upshur  V.  Briscoe  58 

Upson  V.  Badeau  407 

Urann  v.  Coates  82,  103 

Urch  V.  Walker         261,  264,  271,  401. 
503,  927 


Ure  V.  Ure 

305, 

311 

Urkctt  V.  Coryell 

()0 

Urmry's  Ex'rs  v.  Wooden 

694, 

099, 

724, 

74H 

Urpman  v.  Lowther 

Oil  Co. 

■21H 

Utica  Ins.  Co.  i'.  Lynch 

471 

Utterson  v.  Maire 

225 

Uvedale  v.  Patrick 

276 

V.  Uvedale 

747 

892 

Uzzell  V.  Horn 

299 

309 

V.  Mack 

232 

Uzzle  V.  Wood 

104 

INDEX    TO    CASES    CITED. 
[References  are  to  sections.) 

Van  Horn  v.  Fonda 


clv 


Vaccaro  v.  Cicalla  476  a,  891,  902, 

910 

Vachcll  V.  Roberts  451 

Vail  V.  Knapp  72 

V.  Vail  305 

Valentine  v.  Richardt         79,  217,  828, 

830 

■B.  Stewart  202 

V.  Valentino  918 

Vallance  v.  Miners'  Life  Ins.  Co.      589 

Valle  V.  Bryan  127 

Vallette  v.  Bennett  320 

V.  Tedons  206 

Valliant  v.  Diodmedc  536 

Van  Amringc  v.  Pcabody  243 

Van  Berghon  v.  Dcnuirest  602  ee 

Vanbcver  v.  Vanbever        171,  172,  181 

Van  Blarcom  v.  Dager  550 

Van  Bokkelen  v.  Tinges  794,  873 

Van  Buskirk  v.  Ins.  Co.  438 

V.  Van  liuskirk  137 

Van  Cott  V.  Prentice  82,  104 

Vance  v.  E.  Lancaster  R.  Co.  478 

V.  Kirk  828 

V.  McLaughlin  642 

V.  Vance  929 

Vandcbnnde  v.  Livingston  872,  877 

Vandenborg  v.  Palmer  96,  165 

Vandcrbilt,  In  re  511 

Vandcrhevden  v.  Crandall       305,  307, 

523 

V.  Mallorj'  660 

V.  Vandcrheyden  468,  918 

Vandcrplank  v.  King         376,  385,  390 

Vandcrstegen  v.  Witham  17 

Vandcr  Volgen  v.  Yates     162,  705,  710 

Vandcrvoot,  In  re  783 

Vandever  v.  Freeman  137 

Vandovcr's  Appeal     273.  411,  412,  415 

Van  Doren  v.  Olden  544,  545 

V.  Todd  232 

Van  Duyne  v.  Van  Duyne  115 

Vanduzer  v.  McMillan  432,  919 

Van  Duzer  v.  Van  Duzcr         603,  027, 

628.  631 

Vane  v.  Dungannon  511  a 

Van  Epps  v.  Van  Densen         627,  628, 

629,  631,  632,  041 

V.  Van  Epps        129,  195,  205,  200, 

430 

Van  Etten  v.  Passumpsic  Bank         144 

Van  Grutten  v.  Foxwell  358 


205.  262,  264. 

401,  .538 

Vanhorn  v.  Harrison  312 

Van  Home  v.  Everson  680 

Villi    ilouten    V.    Fir.st    Reformed 

Dutch  Church  742 

Van  Kirk  v.  Skillniau  680 

Vann  v.  liarnett  816 

Vanuess  v.  .Jacobs  928 

Vannoy  v.  Martin  171 

Van  Rensalaer  v.  Stafford  438 

Van  Rensselaer  v.  Dunkin  652 

Van  Saudan  v.  Moore  886 

Van  Sittart  v.  Van  Sittart  654 

Van  Straubenzee,  Re  548 

Van  Syckel  v.  Johnson  706 

Van  Vcehten  v.  Van  Vechten  380, 

391,  619,  620 

Van  Vronker  v.  Eastman  554 

Van  Wagonan  v.  Carpenter  210 

Van  Wccklo  v.  Malla  205 

Van  Winckle  v.  Van  Houten  569,  570 

Van  Wyck,  In  re                 282.  311,  499 

V.  Richman  282 

Van  Zandt  i'.  Garretson  311 

Vardcman  v.  Ross  .500 

Vardon's  Trusts,  Re  671 

Varick  v.  Briggs  218 

V.  Edwards                      68,  188,  863 

V.  Smith  500,  766 

Varncr  v.  Gunn  858 

Varney  v.  Stevens  554 

Varnum  v.  Meserve    199.  602  m,  602  # 

Varrell  v.  Wendell  254 

Vartie  v.  Underwood  680 

Vastinc's  Estate  918 

Vattier  v.  Hinde                  218,  219,  221 

Vaughan  v.  Barclay  71 

V.  Buck                 451,  547,  634,  636 

V.  Burslem  373 

V.  Evans  593 

V.  Thurston  900 

V.  Vandcrslegen  170,  658,  848,  849 

V.  Walker  663 

Vaux  V.  Parke  305,  555 

Vaux's  Estate  511  c 

Vealc's  Trusts,  In  re  263 

Veasov  v.  Dotou  173 

Veasie  v.  Williams  228 

Veazie  v.  Forsaith  477 

Venables  v.  Coffman  725,  748 

V.  East  Ind.  Co.  262 

V.  Foyle  243,  402 

V.  Morris  319 

Verncr's  Estate  891 

Verney  v.  Carding  828,  837 

V.  Vcrn(!y  532,  578 

Vernon,  Kx  parte  126 

V.  Bhickerlv  874 

V.  Board,  &c.  831 

V.  Kcvs  173 

V.  Morton            585,  591,  593.  602 

V.  Vawdrv  260,  844 

V.  Vernon              111,  112,  367,  611 

Vernon's  Case  94 

Vcrplanck  v.  Insurance  Co.  207 

Verplank  ;•.  Caines  137 

Verulam  v.  Bathurst  369 


clvi 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Very  v.  Russell              199,  602  v,  602  w 

Verzier  v.  Convard  112,  181 
Vesoy  V.  Jamson                  159,  711,  712 

Vestal  V.  Sloan  171 

Vestry,  &c.  v.  Barksdale  91S 

Vctterlein  v.  Barnes  873 

Vez  V.  Emery  465,  901 

Vick  V.  McDaniel  160 

Vickers  v.  Cowell  136 

V.  Scott  550,  551,  771 

Vidal  V.  Girard  42,  43,  45,  46,  240, 

694,  700,  724,  748 

V.  Philadelphia  694 

Viers  v.  Viers  144,  147 

Vigor  V.  Harwood  550 
Vigrass  v.  Binfield      453,  825,  826,  827 

Vilas  V.  Bundy  438 

Villard  v.  Chovin  618 

Villers  ti.  Beaumont  104,  108 

Villiera  v.  Villiers  315,  319 

Villines  v.  Norfleet  850 

Vincent  v.  Beshopre  511  b 

V.  Ennya  784 

V.  Godson  260 

V.  Newcombe  451 

Vine  V.  Raleigh  394 

Vines  v.  Clarke  511  c 

Viney  v.  Abbott  104 

Vinton's  Appeal  545 

Virginia  Coal  Co.  v.  Kelly  129,  210 

Vizoneau  v.  Peagram  655,  656 

Vogt  V.  Vogt  358 

Vohmann  v.  Michel  263,  851 

Volans  V.  Carr  623 

Volgen  V.  Yates  730 

Von  Hesse  v.  MacKaye  104 

Von  Hurter  v.  Spergeman  433 

Von  Trotha  v.  Bamberger  75,  76,  79 

Voorhees  v.  Church  206 

V.  Stoothorp  918 

Vose  V.  Grant  242 
Voyle  V.  Hughes           68,  101,  102,  438 

Vreeland  v.  Van  Horn  849 

V.  Williams  171 
Vyse  V.  Foster                     429,  468,  469 

Vyvyan  v.  Vyvyan  851 


W. 

Wackerbath,  Ex  parte  416 

V.  Powell  404 

Wadd  V.  Hazelton  96 

Waddell  v.  Waddell  676 

Waddingham  v.  Loker  82 

Waddington  v.  Banks  38,  231 

Waddy  v.  Hawkins  918 

Wade  V.  Amer.  Colonization  Soc.     748 

V.  Button  104 

V.  Dick  927 

V.  Fisher  647,  648 

V.  Greenwood  239 

V.  Harper        199,  209,  602  v,  602  t 

■B.  Paget  13,  347 

V.  Pettibone  135 

■D.  Pope  9! 2 

Wadham  v.  Society,  &c.  660 

Wad.sworth,  In  re  275,  411 


Wadsworth  v.  Arnold  815  6 

V.  Schisselbauer  815  b 

V.  Wendell  95 

Wagenseller  v.  Prettyman  915 

Wager  v.  Wager  121 

Wagner  v.  Baird  228 

Wagnon  v.  Pease  815  c,  820  a 

Wagstaffe  v.  Lowerre  918 

V.  Read  219,  220 

V.  Smith  306,  648,  655,  670 

V.  Wagstaffe  93,  301 

Wailes  v.  Cooper  218 

Wain  V.  Egmont  600 

Wainwright  v.  Elwell  13 

V.  Miller  381 

V.  Waterman  249,  608,  510 

Wait  V.  Day  143 

D.  Maxwell  35 

Waite  V.  Whorwood  835,  837 

Wake  V.  Tinkler  330,  520 

Wakefield  v.  Maffett  580 

Wakeman  v.  Grover  590,  692,  594, 

600 

V.  Rutland  787,  874 

Walburn  v.  Ingilby  879 

Walcott  V.  Cady  541 

Walden  v.  Karr  86,  863 

Waldo  V.  Caley  699,  705 

V.  Cumminga  541 

V.  Waldo  540,  776 

Waldron  v.  Chastney  602  p,  602  aa 

V.  McComb  768,  786  a 

V.  Sloper  438 

Wales  V.  Bowdish's  Ex'r  252,  254 

V.  Newbould  679 

Waley's  Trusts,  In  re  388 

Walford  v.  Gray  208 

V.  Liddel  862 

Walke  V.  Moore  511  c 

Walker,  In  re    454,  462,  466,  468,  584, 

613,  614,  615,  633,  636,  847,  904 

V.  Beal  920 

V.  Brungard        134,  135,  199,  288, 

292,  598,  602  p,  602  v 

V.  Burngood  126 

V.  Bynam  468 

V.  Crews  96,  103 

V.  Crowder  602  A,  612 

V.  Daly  181 

V.  Dean  327 

V.  Drury  636 

V.  Dunlop  171 

V.  Elledge  836 

V.  Follett's  Estate  570 

V.  Fawcett  328 

V.  Locke  84,  162 

V.  Maunde  257,  509 

V.  Mower  383 

V.  Neil  223 

V.  Ogden  72 

V.  Page  456 

V.  Perkins  214 

V.  Proswick  239,  876 

V.  Richardson  23,  384 

V.  Ross  586 

V.  Sedgwick  232,  237 

V.  Sharp  920 

V.  Shore       500,  548,  613,  771 


INDEX    TO    CASES    CITED. 
(References  arc  to  sections. J 


clvii 


Walker  v.  Smalwood  474 

. 764, 770, 780, 

Walter  v.  Walter 

305 

795 

Waltham's  Case 

169.  181 

t>.  Smyser's  Ex' 

rs 

511 

Walton  V.  Avery 

918 

V.  Symonds 

402, 

412,  418,  419, 

V.  Dnimtra 

310 

421,  440, 

453, 

467,  821,  8.30, 

V.  Follansbee 

76 

847. 

848 

851,  875,  923 

V.  Stafford 

59S 

».  Taylor 

358,  814 

V.  Walton               94 

150,  151,  152 

V.  Walker  206. 

226, 

229,  230,  421, 

V.  Young 

237 

422,  507. 

608. 

510,  666,  672, 

Walworth  v.  Holt 

885 

694 

748,  863,  918 

Walwyn  v.  Coutta 

367,  585,  593 

V.  Wetherell 

618 

V.  Lee 

218,  219 

V.  Whiting 

121 

Wamble  v.  Battle 

232 

V.  Williams 

238 

Wamburzee  r.  Kennedjy 
Wankford  v.  Wankford 

863 

V.  Woodward 

471 

264 

V.  

297,  453,  461 

Warburton  v.  Earn 

784 

Walker's  Estate 

918 

V.  Sandys 

414,  505 

Walker's  Ex'r  v.  Walker 

545 

V.  Warburton 

610,  681 

Walkerlv,  In  re 

391 

Ward  V.  Amory 

312,  627 

Wall  V.  Bright      38, 

122 

231.  337,  342 

t.  Arch 

863 

V.  Cockerell 

202 

V.  Armstrong 

137 

V.  Stubbs 

176 

V.  Arrcdondo 

71 

V.  Tomlinson 

639.  640 

V.  Audland 

101 

V.  Town 

190 

V.  Bakkelen 

229 

Wallace  v.  Anderson 

386  b 

V.  Barrows 

783,  785 

V.  Auld 

627,  645 

V.  Brown 

202  6 

V.  Berdell 

104 

V.  Butler 

262.  264 

V.  Bowens 

144 

V.  Davidson 

128 

V.  Brown 

206 

V.  Devon 

601 

V.  Coster 

652,  661 

V.  Dorch 

277 

V.  Duffield 

75 

126.  127,  128 

V.  Harvey 

863 

V.  Marshall 

133 

V.  Hipwell 

413.  733 

V.  McCullough 

127.  128 

V.  Kitchen 

466 

V.  Taliaferro 

639 

V.  Lant 

161 

V.  Wainwright 

13 

V.  Lenthal 

611  b 

V.  Wallace 

201 

V.  Lewis 

593,  594 

Waller  v.  Armistead 

213,  851 

V.  Matthews 

133 

V.  Barrett 

846,  924 

V.  Morgan 

250 

V.  Catlett 

452 

V.  Morrison 

438 

V.  Chiids 

701,  702,  714 

V.  Screw  Co. 

610 

V.  Harris 

602  # 

V.  Shire 

919 

V.  Jones 

171,  206 

V.  Smith 

205,  456 

I'.  Pollitt 

358 

V.  Spivey 

133 

V.  Teal 

770 

V.  Stanard 

611  b 

Walley  v.  Whalley 

196,  828,  878 

V.  Tiukhara 

429 

Wallgrave  v.  Tebbs 

77,  83.  93,  181. 

V.  Trotter 

590 

216,  511  a 

■c.  \ixn  Bokkelen 

229,  230 

Walling  V.  Burgess 

322 

V.  Ward      121.  126, 

139,  147,  476, 

Wallingford  v.  Heard 

856 

809 

Wallington  v.  Taylor 

576 

V.  Webber 

183 

Wallington's  Estate 

205 

V.  Yates 

903  o 

Wallis  V.  Freestone 

506 

Ward's  Settlement 

455 

V.  Loubat 

202 

Warden  )'.  Ashburner 

556 

V.  Thornton 

416,  420,  602  n 

V.  Richards 

499 

V.  Wallis 

299 

Wardlaw  r.  Gray 

627,  628,  639 

Walmcsley  v.  Booth 

188,  202,  203 

Wardle  r.  Claxton 

648.  649 

Walraven  v.  Lock 

75 

r.  Hargroaves 

282 

Walrond  v.  Walronc 

107,  471 

Wardour  r.  Beresford 

183 

Walsh  V.  Dillon 

888 

Wardwell  r.  McDowell 

270,  499 

V.  Gladstone 

273,  291,  731 

Ware  V.  Cann 

386 

V.  Stillo 

242 

V.  Fitchburg 

705,  743 

V.  Wallinger 

248. 

250,  258,  507, 

V.  Horwood 

187 

511  h 

V.  MeCandlish 

544,  545 

V.  Walsh 

62,  618,  623 

V.  Mallard 

112,  117 

V.  Wason 

645 

V.  Polhill 

605 

Walston  V.  Smith 

126.  143.  144 

V.  Kichardson 

310,  312 

Walter  v.  Klock 

215 

V.  Sharp 

660 

V.  Logan 

501 

Waroliam  v.  Brown 

510 

V.  Saunders 

633 

Warfield,  Ex  parte 

630 

clviii 


INDEX   TO    CASES   CITED. 
[Referencee  are  to  sections.] 


Warfield  v.  Ross  187 

Waring,  hi  re  34 

V.  C.  &  D.  R.  Co.  858 

V.  Coventry  506 

V.  Darnall  438,  439,  786  a 

V.  Purcell  556 

V.  Waring  438,  457,  562,  672 

Warland  v.  Colweli  328 

Warley  v.  Warley  564,  566 

Warman  v.  Seaman  161 

Warnoford  v.  Thompson  765 

Warner  v.  Bates  112,  114,  115,  116 

V.  Bliven  235 

■V.  Daniels  167,  171,  173,  230 


243 
232,  239 
221 
221 
239 
275 
865 
728 
438 
571 
232 
648 
873 
195,  458,  459,  477,  486, 
787,  919 
272 
139 
84,  85 
454 
476  a 


V.  Martin 

V.  Van  Alstyne 

V.  W^hittaker 

V.  Winslow 
Warrall  v.  Morlar 
Warren,  Matter  of 

V.  Adams 

V.  Clancy 

V.  Copelin 

V.  Davies 

V.  Fenn 

V.  Haley 

V.  Howard 

V.  Pazolt 

V.  Rudall 

V.  Steer 

V.  Tynan 

V.  Union  Bank 

V.  Warren 

V.  W^arrick  361 

W^arriner  v.  Mitchell  126 

V.  Rogers  97,  98 

Warter  v.  Anderson  922 

V.  Hutchinson     306,  312,  315,  581 

Wartman  v.  Wartman  474 

Wartram  v.  Wartram  825 

Warwick  v.  Edwards  665 

V.  Hawkins  648,  651 

V.  Warwick  222,  834 

Wasby  v.  Foreman  246  a 

W'ashborne  v.  Downes  377 

Washburn  v.  Burns  681 

V.  Sewell       46,  699,  724,  730,  741, 

748 
Washington,  &c.  R.  R.  Co.  v.  Alex- 
ander, &c.  R.  R.  Co.  282 
Washington  v.  Emery  466 
V.  First  Nat.  Bank  831 
Washington's  Estate  159,  181 
Washington  Liquor  Co.  v.  Alladio 

Cafe  Co.  242 

Wassell  V.  Leggatt  865 

Wasson  v.  Connor  223 

Watchman,  The  592 

W'aterhouse  v.  Stansfield  72 

W'aterman  v.  Alden  276,  544,  545,  902 

V.  Baldwin  768 

V.  Buckingham    127,  132,  815  b 

V.  Cochran  891,  900 

V.  Spaulding  780,  781,  783 

V.  Sprague  Manuf.  Co.  591 

V.  Waterman  Hall  858,  860 

V.  W^ebster  791 


Waters  v.  Bailey 

V.  Conolly 

V.  Groom 

V.  Margenim 

V.  Stickney 

V.  Tazewell 

V.  Thorn 
Watertown  v.  White 
Watkixis,  Ex  parte 

V.  Bigelow  729 

V.  Check  795 

V.  Holman 

V.  Jonea 

V.  Quarles 

V.  Russell 

V.  Specht  312,  316 

V.  Stockett 

V.  Weston 
Watkyns  v.  Watkyns        628, 

Watson  V.  Bagaley 
V.  Bane 
V.  Bothwell 
V.  Brickwood 
V.  James 
V.  Knight 

V.  Le  Row  142 

V.  Marshall 
V.  Mayrant 
V.  Pearson 


V.  Saul 

V.  Stone 

V.  Sutro 

V.  Thurber 

V.  Toone 

V.  Wells 
Watt  V.  Ball 

r.  Creyke 
Watton  v.  Penfold 
Watts  V.  Bullas 

V.  C'resswell 

V.  Girdlestone 


312.  315, 
575 


453,  462. 
509 


V.  Kancie 

V.  Newberry 

V.  Symes 

V.  Turner 
Watts'  Settlement 
Waugh  V.  Riley 

V.  Wyche 
Wavell  V.  Mitchell 
Way  V.  Patty 
Way's  Settlement 

Trust,  In  re 
Wayman  v.  Jones 
W^ayne  v.  Fouts 

V.  Hanham 
Waynesburg  College's  App. 
Weale  v.  Ollive 
Weall,  In  re  404,  441, 

Wearing  v.  Wearing 
Weatherby  ».  St.  Giorgio 
Weaver  v.  Fisher 

V.  Leiman 

p.  Spurr 
Webb,  In  re 

V.  Bailey 


129,  196 
590 
199 
500 
182 

515,  653 

199,  202 

757 

65 

,  730,  748 

800,  810 

41 

277 

380 

239 

343,  858 
226 
357 

633,  637, 
673 
589 
238 
182 
566 
768 
593 

149,  218 
630 
121 

414,  499. 
501 

745,  863 

4.56,  914 
866 
680 
861 
232 
323 
511  a 
750 

107,  108 

53 

466,  469, 

539,  777 
809 
828 
347 
520 
292 
55 
921 
873 
237 

101,  102 

103,  104 

418,  419 

448 

761 

82 

100 

900,  902 
451 
790 

127,  128 

863,  865 

729,  748 
454 

133,  837 


INDEX    TO    CASES    CITED. 

[References  arc  to  acctiona.l 


clix 


Webb  V.  Borden  299,  305 

V.  Claverden  182 

V.  Crawford  520 

r.  Daggett  586,  590,  600 

V.  De  Beauvoisin  908 

V.  Deitrich  56,  276 

v.  Grace  516 

V.  Jones  566 

».  Kelley  119 

r.  Ledsam  404,  411,  412 

V.  Lugar  196 

V.  Neal  43,  276,  698 

V.  Robinson  238,  239 

I'.  Rockefeller  299 

V.  Sadler  254 

V.  Shaftesbury  275,  280,  282,  293. 

358,  427,  458,  508,  912,  913 
r.  Vermont  Central  R.  Co.        886 

V.  Webb       252,  395,  569,  888,  918 

V.  Wools      112,  113,  115,  lis,  620 

Webb's  Appeal  633,  641 

Webber  v.  Webber  305,  480 
Webber  Hospital  Ass'n  v.  McKen- 

zie  705 

Weber  v.  Bryant  712,  729 

V.  McCleverty  602  i 

Webster  v.  Boddington  385,  508 

V.  Cooper    299,  307,  312,  315,  317 

V.  Helm  055 

V.  King  203 

V.  Morris  112,  713,  736 

V.  Newbold  863 

V.  Sughrow  715 

V.  Vandeventer  274,  343,  921 

V.  Webster  438.  672,  674 

V.  Wiggin  699,  705 

Wodderburn  v.  Wedderburn    200,  429, 

430,  454,  470,  745,  851,  863,  864. 

865.  923 

Wedgewood  v.  Adams  787 

Weed's  Estate  919 

Weekham  v.  Berrv'  329 

Weeldy  v.  Ellis     '  133 

Weeks  v.  Cornwall  765 

V.  Frankel  347,  499 

V.  Lego  660 

V.  Weeks  633 

Weems  v.  Harrold  820  a 

Weigand's  Appeal  417,  420 

Weil  I'.  Lehmayer  891,  910 

Weiland  v.  Townsend  510 

Wcinmann's  Estate  397.  398 

Weinstein  v.  Weber  511  c 

Weir  V.  Barker  484 

V.  Tannehill  594 

Weisbrod  v.  Chicago  678 

Weisel  v.  Cobb  468.  918 

Weiseham  r.  Hocker  76,  226,  602  b 

Weiss  D.  Dill  912 

V.  Haight  &  Freese  Co.  828 

V.  Heitkamp  162 

Wei  born  ?>.  Rogers  864 

Welby  V.  Welby  189 

Welch,  In  re  618 

V.  Adams  476  a 

V.  Allen  320 

V.  Apthorp  550 

V.  Brimmer  378 


Welch  V.  CaldweU  729,  748 

V.  Episcopal  Theol.  School         920 

V.  Greenhalge  783 

V.  Hcnshaw  82 

V.  London  Assurance  Co.  487 

V.  Manfleville  330 

V.  McGrath  195 

V.  McKenzie  322 

V.  Parrau  238 

V.  Pulley  828 

V.  Welch  647,  649 

Weld  V.  Bonham  885 

V.  Putnam  550,  575 

V.  Weld  766 

Welford  v.  Beazelcy  82 

V.  Chancellor  178 

Welhclm  v.  Palmer  58 

Well  V.  Thornagh  182 

Well  Beloved  Weeks.  In  re  700 

Wellbeloved  r.  Jones  702,  732 

Wellborn  v.  Williams  238 

Weller  v.  Fitzhugh  433 

V.  Kcr  508,  517 

■0.  Weller  508 

Welles  r.  Ely  555 

V.  Lewis  .502 

V.  Middleton  202 

V.  Yates  186 

Wellesley  v.  Beaufort  613 

V.  Wellesley  122,  672 

Welling,  Matter  of  919 

Wellman  v.  Lawrence  602  r 

Wells,  In  re  104,  622 

V.  Brooklyn,  &c.  R.  Co.     493,  784 

V.  Chapman  330 

V.  Doane  705.  720,  724,  748 

V.  Foster  69 

V.  Francis  129 

V.  German  Ins.  Co.  96,  100 

V.  Heath  736.  737,  748 

V.  Lewis  499 

V.  Malbon  920,  926 

V.  McCall     118.  310  a,  320,  386  a, 

652,  671 

V.  Price  636 

V.  Prince  856 

V.  Squires  381 

V.  Stout  672 

V.  Thorman  655.  660 

V.  Wells  602  q 

Wells-Stone  Merc.  Co.  v.  Aultman 

598.  909 

I'.  Grover  598,  815  c 

Welsh  V.  Brown  918,  919 

V.  Foster  380,  381 

V.  Gist  252 

V.  London  Ass.  Co.  553 

Welston  V.  Hildreth  678 

Welt  V.  Franklin  299 

Weltncr  v.  Thurmond  863 

Welton  V.  Devine  143.  144 

Wemvss  i'.  White  386  6 

Wendell  v.  French  463,  918 

Wendt  V.  Walsh  299 

Wentworth  v.  Read  570 

V.  Shibles  79 

V.  Tubb  480 

V.  Wentworth  551 


clx 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Wentz's  Appeal 

546 

Wcrborn  d.  Austin 

866 

Weschler's  Estate 

545 

Wescott  V.  Binford 

358 

West,  In  re 

94 

V.  Bailey 

262 

V.  Berry 

765 

V.  Biscoe 

299 

V.  Erissey 

361,  367,  834 

V.  Fitz 

298,  312 

V.  Gribben 

886 

V.  Jones 

419 

V.  Kerr 

516 

V.  Knight 

695,  699 

V.  Moore 

170 

V.  Palmer 

693 

V.  Ray 

511c 

V.  Shuttleworth  160,  701,  702,  726 

V.  Sloan  863 

V.  Smith  918 

V.  Snodgrass  592 

V.  West  647 

V.  Williams  388 

West's  Estate  305,  358 

Westbroke,  In  re  904 

Westbrook  v.  Harbeson  226,  230 

Westcott  V.  Cady  541 

V.  Culliford  476  a 

V.  Edmands  310,  311 

V.  Nickerson  546,  548 

Wester's  Appeal  194 

Westerfield,  In  re  415,  417 

V.  Janssen  188 

V.  Kimmer  133 

Western  v.  Cartwright  861 

Western  R.  R.  Co.  v.  Nolan  328, 330, 877 

Western  Union  Tel.  Co.  v.  Boston 

Safe  Dep.  &  T.  Co.       485,910 

V.  Manhattan  Ry.  Co.  150 

Westervelt  v.  Hoff  222 

V.  Matheson  187 

Westgate  v.  Handlin  602  u 

V.  Monroe  680 

Westley  v.  Clarke  416,  421 

V.  Williamson  891 

Westmacott  v.  Robins  231 

Westmeath  v.  Salisbury  672 

V.  Westmeath  672,  673 

Weston  V.  Barker  98,  593,  843 

V.  Nevers  592,  593,  602 

Westover  v.  Carman  447,  462,  468 

V.  Chapman  297,  461,  468 

Westvelt  V.  Gregg  676 

Wethered  v.  Safe  Deposit  Co.  550,  575 

WethereU  v.  Collins  873,  892 

V.  Hamilton  75 

V.  O'Brien  828 

V.  WethereU  511  c 

V.Wilson  117 

Wetherhed  v.  Wetherhed  68 

Wetherill  ».  Hough  448,449,611 

Wetmore  v.  Brown  918 

V.  Parker  43,  738 

V.  Porter  815  c 

V.  Truslow  386  a 

V.  Wetmore  386  a 

Wetzel  V.  Chaplin  98 

Whale  V.  Booth  810,811 


Whaler  v.  Cox  671 

Whaley  v.  Drummond  611  b 

V.  Eliot  186 

V.  Whaley  126,  127,  133 

Whall  V.  Converse  920 

Whallen  v.  Kellner  282 

Whalley  v.  Whalley  861 

Whallon  v.  Scott  590,  592 

Wham  V.  Love  900 

Wharf  V.  Howell  226 

Wharton  v.  Clements  846 

V.  Masterman  399,  622 

Whatford  v.  Moore  580 

Whatley  v.  Oglesby  790,  794 

Wheate  v.  Hall  375,  498,  511  o 

Wheatley  v.  Badger  262 

V.  Boyd  343 

V.  Purr  86,  98 

Wheaton  v.  Wheaton  226 

Wheeler,  In  re  290 

V.  Bingham  512 

V.  Bowen  629,  642 

V.  Hall  206 

V.  Howell  570 

V.  Kirtland  133,  324 

V.  Lane  232 

V.  Moore  642 

V.  Newhall  305 

V.  Perry  262,  455,  545,  928 

V.  Reynolds  173 

V.  Smith  117,  253 

V.  Stone  602  b 

V.  Sumner  593 

V.  Warner  757 

Wheeler's  Appeal  27.3 

Wheeler's  Settlement,  In  re  671 

Wheelock  v.  Am.  Tract  Society       729, 

748 

V.  Moulton  757 

V.  Simons  358 

Wheete  J).  Hale  498,511a 

Whelan  v.  Palmer     248,  254,  510,  511, 

511  a 

V.  Reilly  117,  287 

V.  Wheian  83,  189,  201 

Wheldale  v.  Partridge  499 

Wheless  v.  Wheless  448 

Whelpdale  v.  Cookson  195 

Whelpley  v.  Stoughton  661 

Wherry  v.  Hale  815  b 

Whetham  v.  Clyde  134 

Whetsler  v.  Sprague  82 

Whetstone  v.  Sts.  Bury  .301,  .309 

V.  Whetstone's  Ex'rs  863 

Whichcote  v.  Lawrence  195,  867 

V.  Lyle  34,  299 

Whicker  v.  Hume  700,  709,  741 

Whipple  V.  Adam  115,  116 

V.  Barton  202  a 

V.  Clure  189 

V.  Fairchild  827  a 

Whistler  v.  Newman  658,  669,  900 

r.  Webb  873 

Whiston  V.  Rochester  742 

Whitaker  v.  McDowell  603 

Whitall  V.  Clark  667 

Whitcomb  v.  Cardell  82 

V.  Jacob  835,  837 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


clxi 


Whitcomb  v.  Minichin  195 

White,  In  re  70S.  728,  729 

V.  Albertson  1^30 

J).  Allen  66,  99,  3S1,  891 

V.  Att'y-Gen.  7:50,  74S 

V.  Barton  261,  827 

V.  Baugh  443 

V.  Baylor  311,  312 

V.  Briggs  112.  113,  390 

V.  Brutton  113 

V.  Bullock  421,  918 

V.  Callinan  679 

V.  Cannon  529 

V.  Carmarthen,  &c.  Ry.     752.  754 

V.  Carpenter  126,  132,  133,  139 

V.  Carter  369 

V.  Casanave  232 

V.  Commonwealth  877 

V.  Cook  795 

V.  Costigan  865 

V.  Cuddon  770 

V.  Damon  183,  187 

V.  Ditson  263.  429.  468,  705 

V.  Dougherty  237 

V.  Drew  127 

V.  Evans  94,  150 

II.  Ewer  855 

V.  Fisk  713,  720 

V.  Flora  187 

V.  Foljambe  774,  786 

V.  Grane  012 

V.  Hale  384,  730,  737 

V.  Hall  748 

V.  Hampton  38,  240,  721 

V.  Havnes  873 

T.  Hicks  509  c 

V.  Hildreth  678 

v.  Howard  393,  715,  748,  765 

V.  Irvine  112 

r.  Loa\att  864 

V.  Lincoln  446,  821 

V.  McDermott  503 

V.  Malcomb  602  r 
V.  Mass.  Inst,  of  Technology     262 

V.  McNutt  660,  680 

V.  Montserratt  590 

V.  Nutts  122 

V.  Parker  305.  307 

V.  Patten  246  a 

V.  Rice  63 

V.  Ross  85 

V.  Selden  843 

V.  Sheldon  140 

V.  Sherman  427,  429.  452,  456, 
467,  849,  851 

V.  Simpson  317 

V.  Sprague  893 

?;.  St.  Barbe  511  « 

V.  Stanficld  366.  827  h 

V.  Story  680 

V.  Stover  _  238 

V.  University  748 

».  Watkins  411.  602  Jf 

V.  Weldon  137 
t>.  White          71.72.  118.  164.  240, 

256.  277,  287,  386  a.  532. 
533.  564.  690.  699.  719.  729. 
730.  849.  863.  864,  874 

VOL.  I.  —  k 


White  V.  Whitney  602  i.  602  j 

V.  Williams  94,  150.  232,  237. 

238 

V.  Wilson  248 

White's  Trust.  In  re         250.  251,  725. 

728 

White  River  Lumber  Co.  v.  Clark   282 

White  School  House  v.  Post      244.  245 

Whiteacre.  Ex  parte  337 

Whitecar's  Estate  443.  452.  462 

Whitefield  v.  Crissman  391 

Whitehead.  Ex  parte  619 

In  re  550 

V.  Lord  864 

V.  Whitehead  287.  918 

Whitchorn  v.  Hines  189,  204 

Whitehouse  v.  Bolster  181 

V.  Cargill  568 

V.  Whitehouse  95,  110 

Whitehurst  v.  Harper         251,  255,  639 

Whitelcy  v.  Central  Trust  Co.  235 

1'.  Edwards  671 

V.  Lcaroyd  458 

Whltesides  v.  Carman  660 

V.  Dorris  627,  628 

V.  Greenlee  191 

Whitfield  V.  Burnett  540 

V.  Prickett  388,  555 

V.  Whitfield  617 

Whiting  V.  Dyer  84.  206 

V.  Gould  84.  85 

V.  Whiting  112,  117,  343.  866 

Whitley  v.  Ogle  133,  137.  144 

Whitlock  V.  Washburn  779 

Whitlock's  Case  530 

Whitman  v.  Mclntyre  598 

Whitman's  Appeal  200 

Whitmarsh  v.  Robertson   826,  894,  901 

Whitmore  v.  Turquand  593,  826 

i;.  Weld  53 

Whitney  j;.  Fox  855 

V.  Krows  590 

V.  Smith  427 

Whitridge  v.  Williams  547 

Whittaker.  In  re  603 

V.  St.  Luke's  Hospital  747 

Whittemore  v.  Cowell  167 

Wliittcn.  Re  381 

V.  Whitten  143 

Whittenden  Mills  v.  Upton  757 

Whittick  V.  Kane  218 

Whittingham  v.  Schofield's  Trustee 

112.  477.  918 

Whittle  V.  Halliday  878 

V.  Henning  633 

Whittlesey  v.  Hughes  402 

Whitton  ?'.  Whitton  162 

Whittrcdge  v.  Sweotzer  386.  438. 

831.  926 

Whitworth  v.  Carter  686 

V.  Davis  231 

Whorwood  v.  University  Coll.  718 

Whvte  V.  Arthur  85 

Wickes  V.  Clarke  628 

Wickesham  v.  Savage  254 

Wickham  v.  Berry  305.  526 

V.  New  Brunswick  &  Canada 

Railway  750 


L'lxii 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Wickliffe  v.  Lexington 
Wickniaii  v.  Robinson 
Wicks  V.  Westcott 
Widdowscn  v.  Duck 
Widgery  v.  Haskell 
Widmore  v.  Woodroffe 
Widner  v.  Fay 
Wiener  v.  Davis 
Wier  V.  Simmons 
Wigg  D.  Wigg 
Wiggin  V.  Swett 

7).  Wiggin 
Wigglesworth  v.  Steers 
W'iggs  V.  Winn 
Wight  V.  Leigh 
W^ightman  v.  Doe 
W^ightwick  V.  Lord 
W^igram  v.  Buckley 
W'igsell  V.  Wigsell 
Wike's  Case 
Wilber  v.  Wilber 
Wilbur  V.  Spofford 
Wilcock,  Re 

Wilcocks  V.  Hannyngton 
Wilcox,  Matter  of        99, 

V.  Calloway 

V.  Kellogg 

V.  Morris 

V.  Quinby 

V.  Wilcox 
Wild  V.  Wells 
Wilde  V.  Davis 

V.  Gibson 
Wilder  v.  Hast 

V.  McDonald 

V.  Secor 
Wilder's  Ex'r  v.  Wilder 
Wilderman  v.  Baltimore 
Wildey  v.  Robinson 
Wilding  V.  Bolder 

V.  Richards 
Wiles  V.  Cooper 

V.  Gresham         438, 

V.  Greshon 

D.  Wiles 
Wiley,  In  re 

V.  Collins 

V.  Smith 
Wilhelm  v.  Byles 

V.  Folmer 
Wilhite  V.  Skelton 
Wilkes  V.  Ferris 

V.  Holmes 

V.  Steward 

V.  Wilkes 
Wilkin,  Matter  of 
Wilkins  v.  Anderson 

V.  Frye 

V.  Gordon 

V.  Hogg 

V.  Hunt 

V.  Stevens 
Wilkinson,  Ex  parte 

In  re 

V.  Bewick 

v.  Bradfield 

V.  Charlesworth 


863,  864 

231 

770 

457,  474 

593 

255,  701 

918 

586 

881 

121,  217,  221 

556 

133 

191 

82 

359 

602  t,  782 

450,  551,  771 

223 

S48 

40.  325,  633 

381 

602  A 

159,  160 

96,  101,  102 

381,  391, 918 

239 

586 

602  d 

275 

312 

871 

397 

172,  180 

912,  918 

598 

863 

133 

748 

194 

59,  277,  297 

593 

888 

440,  460,  482, 

847 

185 

627,  628,  629 

452,  462 
593 

359,  370 
598 
127 
206 
585 
511  b 

453,  460 
672 
503 
217 
786 

602  ee 
417 
892 
137 
263 
455 
443 
189,  226 
641 


Wilkinson  v.  Cheatham 

V.  Duncan 

V.  Getty 

V.  Gibson 

V.  Lindgren 

V.  Malin 

V.  May 

V.  Parry 

V.  Rosser's  Ex'r 

V.  Stafford 

V.  Stewart 

V.  Wilkinson         66, 
540, 

V.  W^right 
Wilkinson's  Estate 
Wilks  V.  Fitzpatrick 

V.  Groome 
Wilkson  V.  Leland 
Willan  V.  Willan 
Willard  v.  Eastman 

V.  Fenn  i 

V.  Ware 

V.  Willard        77,  82, 
Willard's  Appeal 
Wlllats  V.  Busby 
Willcox  V.  Willcox 
Willets  V.  Willets 
Willett  V.  Blanford 

V.  Sandford 
Willey's  Estate  42, 

William  v.  Mosher 
William's  Case 

Estate,  In  re 

Settlement 
Williams,  Ex  parte 

In  re 

V.  Allen 

V.  Bailey 

V.  Branch  Bank 

v.  Brown 

V.  Callow 

V.  Carle 

V.  Carter 

V.  Chitty 

V.  Clairbome 

V.  Coade 

V.  Conrad 

V.  Corbett 

V.  Cork 

V.  Gushing 

V.  Donnelly 

u.  Donaldson 

V.  First  Pres.  Soc. 

V.  Fitch 

V.  Harrington 

X.  Haskins 

V.  Headland 

V.  Hollingworth 

V.  Jones 

V.  Kershaw  159, 

V.  King 

V.  Knight 

V.  Lewis 

V.  Lobban 

V.  Lonsdale 

D.  Maitland 

V.  Mans 


647 

450 

248 

920 

903  a 

413,  725 

520 

285,  286,  402 

541 

465 

243 

162,  189,  388, 

555,  678,  912 

682 

863 

627 

443,  446 

610 

171,  184,  189 

661 

425 

338 

147,  546,  548 

119 

883 

570 

121 

429,  430 

7 

705,  709,  710 

918 

554,  610,  618 

787 

291 

511  h,  614 

112 

543,  877 

652 

910 

126,  585 

634,  637 

213 

375,  767 

34,  569 

647 

160 

262 

123,  907 

863 

259,  262 

438,  831,  926 

660 

229,  299,  312, 

320,  860,  864 

181,  182 

610 

163,  468 

924 

126.  127 

150,  153 

573,  712,  748 

270 

251,  371 

369 

448 

325,  484 

421 

72 


Williams  v.  Marshall 

V  Massey 

V.  Mattocks 

V  Maull 

V.  McConico 
V.  Moslyn 
V.  Munroe 
V.  Nichol 
V.  Nixon 


INDEX    TO    CASES    CITED. 
(References  are  to  sections.] 


205 
812 
891 
648,  649 
305 
593 
782 
276 


i-Ixiii 


262,  412,  417,  419, 
421,  423,  424,  466 
V.  Otey         598.  602  g,  602  m,  621, 

795 
V.  Owen  226 

V.  Parry  274 

V.  Pearson  694,  721,  722,  730,  748 
V.  Powell  200,  468,  471,  851 

V.  Roberts  232,  237 

V.  Salmond  885 

V.  Scott  195,  851 

V.  Smith  223 

V.  Stevens  427,  429 

V.  Teal  376 

V.  Thacher  920 

V.  Thorn  386  a 

V.  Van  Tuyl  126 

v.  Vreeland  104,  171,  181,  182 

V.  Waters  298,  301,  310 

V.  Wentworth  480 

V.  Williams  96,  112,  113,  146, 

147,  162,  222,  396,  398,  443, 
448,  493,  687,  694,  709, 
728,  737,  748,  830,  838 
».  Wood  239 

V.  Woodward  768,  769 

V.  Young  234,  238 

Williams's  Appeal  652 

Williamson  v.  Beckham  655,  660 

V.  Berry  603,  610 

V.  Branch  Bank  225 

V.  Cline  661 

V.  Coddrington  111,  367 

V  Curtis  597,  795 
V.  Field  230,  768 

V  Gihon  214 
V.  Krohn  427 

V  Louisville  Indus.  School         747 

V  Morton  25,  794,  800,  810 

V  New  Albany,  &c.  Ry.  Co.    759, 

760 

V  Suydam  282,  766 
V.  Wickersham  282 
V.  Williamson              462,  468,  547, 

548,  551,  660 

V.  Woodard  768 

V.  Yager  95 

Williamson's  Estate  448 

Williard  v.  Williard  133,  134,  215, 

540,  546 

Willie  V.  EUice  875 

Williford  v.  Phelan  626 

Williman  v.  Holmes  300,  310,  312 

Willington  v.  Adam  93 

Willink  V.  Morris  Canal,  &c.  Co.      759 

V.  Vanderveer  142 

Willis  V.  Alvey  259,  503 

V  Brown  706 
V.  Cadenhead  677 
V.  Clymer                              432,  919 


k'illis  V.  Earl  Howe 

861 

V.  Foster 

828 

V.  Hiscox 

520,  900,  901 

V.  Kibble 

904 

V.  Rice 

200,  851,  923 

r.  Roberts 

864 

V.  Robertson 

162,  181 

V.  Sharp 

466,  815  b 

V.  Smith 

768 

V.  Smj-th 

82,  96 

V.  Willis 

126,  137 

V.  Yernegan 

187,  189 

Williston  V.  Michigan,  &c.  Ry.         545 
Willmot  V.  Jenkins  263,  574 

Willoughby  v.  Willoughby  218 

Wills  V.  Cooper  347 

V.  Cowper  500 

V.  Saj-ers  647,  649 

Wills' s  Appeal  440,  453 

Willson  V.  Louisville  Trust  Co.        858, 

860 
V.  Tyson  918 

Wilmerding  v.  McKesson  469,  471 

V.  Russ  860,  865 

Wilmot  V.  Pike  438 

Wilson,  In  re  610,  910 

V.  Allen  349,  351,  354,  355 

V.  Anderson  97,  104 

V.  Ball  113.  117 

V.  Bennett  339,  340,  394,  495, 

503,  504 
V.  Brownsmith  903  a 

V.  Bryn  Mawr  Trust  Co.   647,  655 
V.  Castro  126 

I'.  Cheshire  165,  301 

V.  Clapham  122 

V.  Clayburgh  280,  901 

V.  Daniel  213 

V.  Davison  239,  598,  797,  798 

V.  Day  587,  590 

V.  Dennison  408,  413 

V.  Dent  77,  82 

I'.  Doster  810 

V.  Duguid    250,  251,  252,  256,  257 
V.  Eden  511  c 

V.  Edmonds  540 

V.  Forsyth  591 

V.  Goodman  848 

V.  Graham  237 

V.  Gray  590 

V.  Halliley  597 

V.  Harman  556 

V.  Hoare  326 

V.  Leary  299 

V.  Lynt  738.  748 

V.  McAuley  748 

V.  McCullough  34 

t.  Maddison  117 

V.  Major  113.  116 

V.  Md.  Life  Ins.  Co.  768 

V.  Moore      246,  848,  863.  875.  876 
V.  Miishet  672 

V.  Peake  472 

V.  Pennock  273 

I'.  Shively  732 

V  South  Park  Com'ra  785 
1).  Squire                                       993  a 

V  Stevens  828 


clxiv 


INDEX    TO    CASES   CITED. 
[References  are  to  sections.] 


Wilson  V.  Tappan  93 

V.  Towle  240,  287,  294 

V.  Troup  602  d,  602  g,  602  h, 

602  n,  768,  853 

V.  Turner  612 

V.  Welles  S63 

V.  Wilson  94,  282,  385,  395, 

397,  654,  672,  673, 

900,  918 

V.  Youst  546 

Wilson's  Appeal  556,  910 

Estate  68,  262 

Guardianship  613,  615,  618 

Wilson-Stewart,  Re  671 

Wilt  V.  Franklin  259,  590,  593 

Wiltbank's  Appeal  545 

Wilton  V.  Devine  143 

V.  Hill  654,  671,  826,  849 

V.  Jones  873 

Wimbish    v.     Montgomery    Mut. 

Building  &  Loan  Assoc.  122 

Wimpfheimer  v.  Perrine  596 

Winch  V.  Brutton  112 

V.  James  636 

V.  Keeley  345 

V.  Railway  Co.  757 

V.  Winch  615 

V.  Winchester  174 

Winchelsea  v.  Garrety  206 

J).  Nordcliff  458,605,611 

Winchester  v.  Baltimore  R.  R.  Co.    222 

V.  Knight  871 

V.  Machen  653 

Winchester's  Estate  46,  700,  730, 

731,  733 

Winchester,  &c.  Turnpike  Co.  157 

Winchilsea's  Policy  Trusts,  In  re    485, 

909 

Winder  v.  Diffenderffer  842 

V.  Nock  770 

Windon  v.  Stewart  612 

Winebrenner  v.  Colder  733 

V.  Weisiger  214 

Wing  V.  Cooper  602  g 

V.  Hartupee  195 

Winged  v.  Lefebury  217,  231 

Wingfield  v.  Rhea  815  a 

Wingfield's  Case  701 

Winkfield  v.  Brinkman  127 

Winn  V.  Dillon  206 

V.  Fenwick  258 

V.  Riley  132,  678 

Winnall,  Ex  parte  402 

Winona  &  St.  P.  R.  Co.  v.  St.  Paul 

&  S.  C.  R.  Co.  816  a 

W^inslow  V.  Ancrum  600 

V.  B.  &  O.  R.  Co.       411,  770,  779 

V.  Cummings       701,  724,  730,  748 

V.  Tighe  196 

V.  Trowbridge  724 

V.  Young  485,  910 

Winsmith  v.  Winsmith  815  a 

Winsor  v.  Mills  377,  383,  386 

Winston  v.  Gwathmey  174 

V.  Jones  766 

Winter  v.  Anson  235,  236,  239 

V.  Geroe  205,  602  v 

V.  Rudge  291 


Winter  v.  Walters 

677 

Wintermute  v.  Snyder 

184 

Winthrop  v.  Att'y-Gen. 

287 

Winzel  v.  Powder 

386 

Wirth  V.  Wirth 

920 

Wisden  v.  Wisden 

511  c 

Wise,  In  re 

615,  803 

V.  Foote 

189 

V.  Wise 

259 

Wiseman  v.  Baylor 

86 

V.  Beake 

188 

V.  Roper 

111 

Wistar's  Appeal  468,  911,  918  n 

Wiswall  V.  Ross         602  e,  602  h,  602  r, 

602  6b 

V.  Stewart  428 

V.  Ticknor  592 

Wiswell  V.  First  Cong.  Church     476  a, 

928 

Witham  v.  Brooner  298,  520 

Withers  v.  AUgood  358 

V.  Ewing  280 

V.  Hichman  618 

V.  Withers  126 

V.  Yeadon  38,  117,  121,  248, 

251,  254,  255 

Witherspoon,  Ex  parte  918 

Withey  u.  Mangles  257 

Withington  v.  Herring  104 

V.  Withington  292 

Withnell  v.  Withnell  134,  137 

Witman  v.  Lex  701,  724,  728, 

731,  748 

V.  Norton  570 

Witman's  Appeal  918 

Witmer's  Appeal  462 

Witsell  V.  Charleston  655 

Witte  V.  Wolfe  827  a 

Witter  V.  Duley  263 

V.  Witter  17,  466,  521,  605 

Wittingham  v.  Lighthipe  168 

Witts  V.  Boddington  248,  250,  251, 

258 

V.  Dawkins  655,  670 

V.  Horney  126,  137 

V.  Steere  544,  545 

Woddrop  V.  W^eed  815  6 

Woelper's  Appeal  633 

Woerz  V.  Rademacher  142 

Wolbert  v.  Beard  112 

Wolcott  V.  Wilesy  861 

Wolf  V.  Corley  75 

V.  Eichelberger  606 

V.  Hill  776 

Wolfe  V.  McDowell  602  d 

V.  Washburn  438,  440 

Wolff  V.  Van  Meter  680 

Wolford  V.  Hewington  172,  215 

Wolfort  V.  Reilly  429,  468 

WoUaston  v.  Tribe  104 

Wolley  V.  Jenkins  498 

Wolmershauen  v.  Gullick  863 

Wolstoncraft  v.  Long  597 

Wolters  V.  Shraft  139 

Womack  v.  Austin  847 

Women's  Ch.  Ass'n  v.  Kansas  City  728, 

732 
Wood  V.  Abrey  183,  187,  192 


INDEX    TO    CASES   CITED. 
[References  arc  to  iiectiona.| 


ckv 


Wood  V.  Bank  of  Kentucky  237 

i).  Brown  821,  884 

V.  Buriiham  330,  359.  370 

V.  Colvin  602  t 

V.  Cox  112,  114,  152,  153 

V.  Downes  200,  201,  202,  827 

D.  Dudley  571 

V.  Dunimer  242 

V.  Fourth  Baptist  Church  46,  730. 

731 
V.  Garnett  468 

V.  Goodridge  768 

V.  Grayson  602  v 

V.  Hardisty  260 

V.  Harman  609,  794.  799 

V.  Lee  918 

V.  Lembke  766 

V.  McCann  214 

V.  McClelland  386  a 

V.  Mann  221 

V.  Mather  305.  610 

V.  Midgeley  84 

V.  Paine  699 

V.  Partridge  438 

t>.  Patterson  484 

V.  Richardson      117.  511,  770,  787 
V.  Robinson  815  c 

V.  Snow  602  n 

V.  Sparks  262,  499 

V.  Stane  275 

V.  Vanderhurg  891 

V.  White  498,  766,  802 

V.  Wood  112,  256,  305,  391, 

411,  417,  420.  460,  466 
Wood's  Appeal  918 

Woodall's  Assignment,  Re  598 

Woodard  r.  Bird  828 

v.  Wright  477 

Woodbridgc  v.  Bockea      277,  297.  849, 

850 

V.  Perkins  438 

Woodburn  v.  Mosher  590 

r.  Woodburn  539 

Woodburn's  Estate  546 

Woodbury  v.  Obear  891 

V.  Woodbury  189 

Woodcock  V.  Dorset  580 

V.  Reilly  598 

V.  Renneck  250.  258 

Wooden  v.  Kerr  263 

Woodfin  r.  Marks        75,  172.  206.  215 

Woodford  v.  Charnley  101,  102 

r.  Parkhurst  699 

V.  Stevens  127 

Woodgatc  t>.  Flint  317 

Woodhead  v.  Marriott  900 

Woodhouse  v.  Crandall  828 

J'.  Haskins  359 

r.  Meredith  206 

Woodhull  r.  Longstreet  769 

V.  Osborne  135 

Woodin,  Ex  parte  246,  907 

In  re  616 

Woodlee  v.  Burch  199 

Woodliffe  V.  Drury  161 

Woodman  v.  Good  540,  541 

!'.  Morrel  126    143,  144,  140, 

147,  151 


Woodman  v.  Neal  678 

Woodmeston  v.  Walker  652,  671 

Woodroff  V.  Burton  183 

Woodroof  V.  Hundley       700,  705,  721, 

729,  731.  748 

Woodrufif  V.  Cook   205,  218,  476  a,  928 

V.  Marsh  150.  159.  160 

V.  New  York,  &c.  R.  Co.  760, 

910,  919 

V.  Orange  328 

V.  Robb  602  d 

V.  Snedccor  441,  918 

V.  Williams  855,  864 

V.  Woodruff  269,  341 

Woodrum  v.  Kirkpatrick  648 

Woods  V.  Axton  907 

V.  Bailey  292 

V.  Dille  84 

V.  Farmene  241 

V.  Fuller  476  a 

V.  Stevenson  865 

V.  Sullivan  546,  547 

V.  Tombs  456 

V.  Williams  873 

Woodside  r.  Hewel  137 

V.  Woods     113,  117,  118.  620.  886 

Woodson  V.  McClelland  109 

V.  Perkins  660 

Woodward  v.  Halsey  611  b 

V.  Jewell  769 

V.  Schatzell  72 

V.  Seaver  685 

V.  Stubbs  299.  310 

V.  Woodward  239.  607 

Woodward's  Appeal  458 

Woodward-Holmes  Co.  v.  Nudd       322 

Woodwine  r.  Woodrum  793 

Wool  V.  Fleetwood  358,  386 

Wooldredge  v.  Stone  119 

Wooldridge  v.  Planters'  Bank  284. 

602  m,  621 

V.  Watkins  499,  500 

Woolf  V.  Bate  330 

Woollam  V.  Hearne  38,  76,  226 

WooUands  v.  Crowcher  633 

Woollett  V.  Harris  157,  loS 

Woolmer's  Estate  160 

Woolmore  v.  Burrows        366,  375,  390 

Woolsey  v.  Verner  592 

Wooster  v.  Cooper  252,  511  c 

Wooten  r.  Burch  546,  547 

V.  Sherrard  456 

Worbass  v.  Armstrong  900,  918 

Worcester  v.  Western  Railway  757 

Worcester  Corn  Exch.  Co.,  In  re     486 

Wordin's  Appeal  554 

Wordsworth,  In  re  281 

Work  V.  Brayton  239 

Worley  v.  Frampton  786 

V.  Naylor  602  r 

I'.  Sipe  79,  86 

Wormack  v.  Austin  460 

V.  Rogers  187 

Worman  v.  Worman  461 

Wormley  v.  Wormlcy        217.  221,  460, 

475,  509.  593,  770.  777,  794 

Worrall  r.  Harford     417,  894,  907,  910 

r.  Jacobs  672,  673 


t'lxvi 


INDEX    TO    CASES    CITED. 
[References  are  to  sections.] 


Worrall  v.  Marlar  636 

V.  Worrall  672 

Worrell  v.  Presbyterian  Church        730 

Worrell's  Appeal '  900 

Worsley  v.  Scarborough  222 

Worth  V.  Arden  264 

V.  Curtis  606 

V.  McAden  262,  415,  416,  418 

Wortham  v.  Pemberton  633 

Worthiiigton  v.  Evans  502,  517, 

518 

v.  McCraer  618,  619 

Worthy  v.  Johnson  621 

Wott  V.  Grove  206 

Wrae  v.  Seed  821 

Wragg  V.  ComptroUor  Gen.  232 

Wrangham,  Ex  parte  743 

Wray  v.  Steele  132 

Wren  v.  Kirton  405,  443,  444,  463 

Wrey,  In  re  622 

V.  Smith  551 

Wright,  In  re  826,  925 

V.  Arnold     170,  627,  629,  630,  849 

V.  Atkins  112,  113,  114,  120 

V.  Barlow  511  6 

V.  Booth  189 

V.  Brown  645,  685 

V.  Bundy  602  d 

V.  Cadogan  656 

V.  Cain  75 

V.  Campbell  195 

V.  Canev  River  Ry.  Co.    598,  815  b 

V.  Chard        _  658,  659,  872 

V.  Conservative  Inv.  Co.  328 

V.  Dame  217,  232 

V.  Delafield  320 

V.  Dorchester  438 

V.  Douglass  81,  82,  328,  520 

V.  Franidin  Bank  815  b 

V.  Gav  133 

I..  Goff  511  a 

V.  Henderson  602 

V.  King  133,  137 

V.  Lvnn  700,  730,  748 

V.  Miller        98,  112,  117,  538,  546 

V.  Morlev  633,  634 

V.  Pearson  305,  357,  359 

V.  Proud  200,  204,  209 

V.  Rose  602  ff 

V.  Rutter  641 

V.  Smith  195 

V.  Snowe        53,  170,  171,  849,  930 

V.  Trustees  Meth.  Epis.  Church 

55,  499,  730,  748 

V.  Vanderplank  201 

V.  Wakeford  511  b,  783,  784 

V.  Walker  202  h 

V.  Wilkin  121 

V.  Wilson  187,  602  z 

V.  Woodland  239 

V.  Wright  253,  468,  471,  652,  891, 

918 

W^right's  Appeal  569 

Estate  598 

Trusts  922 

Wrightson,  In  re  276 

Wriglev  v.  Swainson  213 

V.  Sykes  802,  803,  805 


Writhingham  v.  Burgoyne  214 

Wroe  V.  Seed  900 

Wulbern  v.  Timmons  H2S- 

Wyatt,  In  re  117,  438,  926 

V.  Sharratt  825,  826,  827 

Wych  V.  East  India  Co.  858,  859 

WyckolT  V.  Wyckoff  802 

Wygal  V.  Bigelow  602  v,  602  w 

Wykham  v.  Wykham  305,  308,  317, 

319,  511  c,  540 

Wylie  V.  Charlton  82 

Wylly  V.  Collins  815  b 

Wyman  v.  Babcock  226 

V.  Carter  500 

Wyncoop  v.  Wyncoop  205 

Wynn  v.  Hawkins  112 

V.  Humberstone  822,  823 

V.  Sharer  127,  138 

V.  Styan  856 

V.  Warren  453 

Wynne  v.  Tempest  415,  848 

Wythes,  In  re  329 


Yader's  Appeal  468 

Yale  V.  Dederer  645,  660,  680 

Yale  Gas  Stove  Co.  v.  Wilcox  207 

Yallop,  Ex  parte  131 

V.  Hal  worthy  871 

Yancy  o.  Manck  232 

Yarbo rough  v.  West  97 

Yard's  Appeal  381,  384,  737 

Yardlev  v.  Raub  664,  665,  666 

V.  .Sibbs  212 

Yarnall's  Appeal    310  a,  316,  320,  358, 

361,  652 

Yarnold  v.  Moorhouse  388,  555 

Yates  V.  Compton  119,  308, 

76& 

V.  Hambly  873 

V.  Yates  511,  548,  551,  748 

Yeager  v.  Bank  of  Ky.  856,  860 

Yeates  v.  Grover  68 

V.  Prior  175 

Yeatman  v.  Yeatman        328,  330,  886 

Yeldell  v.  Quarles  627 

Yem  V.  Edwards  196 

Yerby  v.  Lynch  643 

Yerger  v.  Jones  225,  836,  841, 

842 

Yerkes  v.  Perrin  S3 

V.  Richards  437  a,  815  b 

Yoke  V.  Barnet  640 

Yonge  V.  Hooper  195 

York  V.  Brown  432,  895 

V.  Eaton  136 

V.  Mackenzie  867 

V.  North  Midland  Ry.  Co.         207 

York,  &c.  Ry.  Co.  J).  Myers  602  ee 

York  Railway  v.  Hudson  904 

You  V.  Flinn  299 

Youge  V.  Furst  515 

Youman's  Will,  In  re  358 

Young,  Ex  parte  918 

V.  Benthuysen  783 

V.  Bradley  312 


INDEX   TO    CASES    CITED. 
[References  are  to  scctioas.] 


Young  V.  Brush 

468 

V.  Bumpasa 

180 

V.  Comb 

468 

V.  Easley 

386  a 

V.  Frost 

187 

V.  Graff 

32.  602/ 

V.  Hart 

660,  661 

V.  Jones 

664 

V.  Keogh 

610 

V.  Lutheran  Church 

731,  736 

V.  Mackall 

863 

V.  McNeill 

299,  309 

V.  Martin  112,  113,  115 

V.  Miles  329 

V.  Mutual  Life  Ins.  Co.  511  c, 

790,  794,  800 
V.  Peachy  104,  151,  162,  201,  225 
V.  Scott  888 

V.  Sheldon  48,  254,  511  c,  779 

V.  Snow  920 

V.  Swiggs  769 

V.  Thrasher  322 

V.  Watcrpark  863,  866 

V.  Weed  815  6 

V.  Williams  238 

V.  Wilton  558 

V.  Wood  237 

V.  Young      96,  283,  648,  649,  655, 
820  a,  920 
Young's  Estate         429,  443,  452,  462, 

468 

Young  Men's  Society  v.  Fall  River  710 

Youngc  r.  Cocker  52 

V.  Graff  680 


Younger  v.  Welham 
Younghusband  v.  Gisborne 

Youse  V.  Martin 
Yundt's  Appeal 


clxvii 


413 
119,  386. 
556 
221 
468 


Zabriskie  v.  M.  &  E.  R.  R.  Co.        321 
Zarharias  v.  Zacharias  863 

Zambaco  v.  Cassanetti  482 

Zanesville  C.  &  M.  Co.  v.  Zanes- 

ville  731,  748 

Zeback  v.  Smith  499,  765 

Zehnbar  v.  Spillman  282,  873 

Zeisweiss  v.  James    697,  721,  730,  732, 

748 

Zell  Guano  Co.  ».  Heatherly  593 

Zeller  v.  Eckert  863,  864 

Zcntmyer  d.  Miltower  232 

Zeust  V.  Staffan  655 

Zimmerman  v.  Anders  731,  748 

V.  Barber  139 

V.  Harmon  195 

t).  Kinkle  815  c 

V.  Makepeace  284,  886 

Zimmerman's  Will,  In  re  715 

Zion  Church  v.  Parker  328 

Zoach  V.  Lloyd  611 

Zouch  V.  Parsons  33 

Zundell  v.  Gess  131 

Zunkel  v.  Colson  865 

Zwingle  v.  Wilkinson         236,  237,  238 


LAW   OF    TRUSTS. 


CHAPTER   I. 

INTRODUCTION. 

ORIGIN,    HISTORY,    DEFINITION,   AND    DIVISION   OR    CLASSIFICATION 

OF   TRUSTS. 

§  1.     The  general  nature  of  trusts. 

§  2.     The  technical  nature  of  trusts,  and  their  origin  in  the  Jidei  commissa  of 
the  Roman  law. 

§  3.     The  origin  of  uses. 

§  4.     The  inconveniences  that  arose  from  the  prevalence  of  uses. 

§  5.     The  statute  of  uses. 
§§  6,  7.     The  effect  of  the  statute  of  uses,  and  the  origin  of  trusts. 
§§  8,  9,  10.     Developments  of  trusts  in  England  and  America. 

§  II.     Advantages  of  the  late  adoption  of  trusts  in  America. 

§  12.     Object  of  this  treatise. 
§§  13-17.     Definition  of  trusts. 

Classification  of  trusts. 

§  18.  Simple  and  special  trusts. 

§  19.  Ministerial  and  discretionary  trusts. 

§  20.  A  mixed  trust  and  power,  and  a  power  annexed  to  a  trust. 

§  21.  Legal  and  illegal  trusts. 

§  22.  Public  and  private  trusts. 

§  23.  Duration  of  a  private  trust  and  of  a  public  trust. 

§§  24-27.  Express  trusts,  implied  trusts,  resulting  trusts,  and  constructive 

trusts. 

§  1.  In  the  earlier  states  of  society  the  rules  that  govern 
the  ownership,  disposition,  and  use  of  property  are  simple 
and  of  easy  application.  But  as  States  increase,  as  property 
accumulates,  and  the  business  and  relations  of  life  become 
more  complex,  the  rules  of  law  which  the  new  complications 
demand  become  themselves  complicated,  and  sometimes  diffi- 
cult to  understand  and  apply.  The  law,  doctrine,  and  learn- 
ing of  trusts  thus  had  a  late  origin  and  a  slow  and  gradual 

VOL.    I.  —  1  1 


§  2.]  INTRODUCTION.  [CHAP.    I. 

development.  The  word  "  trust,"  in  its  popular  and  broadest 
sense,  embraces  a  multitude  of  relations,  duties,  and  respon- 
sibilities. Thus,  executors  and  administrators,  guardians  of 
infants  and  lunatics,  assignees  in  insolvency  and  bankruptcy, 
bailees,  factors,  agents,  commission  merchants,  and  common 
carriers,  as  well  as  the  officers  of  public  and  private  corpora- 
tions, all  exercise  a  kind  of  trust.  Indeed,  one  definition  of  a 
trustee  is  "  a  person  in  whom  some  estate,  interest,  or  power 
in  or  affecting  property  of  any  description  is  vested  for  the 
benefit  of  another."  This  definition  embraces  all  the  trusts 
and  offices  above  named,  but  the  law  in  relation  to  many,  if 
not  all  of  them,  is  or  may  be  administered  in  the  common-law 
courts.  It  is  not  of  the  law  of  such  trusts  that  this  treatise 
concerns  itself. 

§  2.  The  trusts  here  treated  are  defined  to  be  "  an  obliga- 
tion upon  a  person  arising  out  of  a  confidence  reposed  in  him 
to  apply  property  faithfully  and  according  to  such  confi- 
dence." ^  Another  author  says  that  "  a  trust  is  in  the  nature 
of  a  deposition  by  which  a  proprietor  transfers  to  another  the 
property  of  the  subject  intrusted,  not  that  it  should  remain 
with  him,  but  that  it  should  be  applied  to  certain  uses  for  the 
behoof  of  a  third  party."  ^  Such  trusts  originated,  and  were 
first  defined  and  reduced  to  practice,  under  the  jurisdiction  of 
courts  by  the  civil  law.  It  was  a  rule  of  that  law  that  a  tes- 
tator could  not  name  a  devisee  to  succeed  the  first  devisee  of 
property,  but  the  first  devisee  took  the  absolute  legal  and 
beneficial  ownei'ship  of  the  property  ;  that  is,  a  testator  could 
not  direct  and  control  the  use  of  his  property  after  his  death. 
This  rule  was  modified  so  far  that  a  testator  might  name  an 
heir  to  succeed,  if  the  first  heir  died  too  young  to  make  a 
will,  but  in  all  other  cases  the  testator  could  only  rely  upon 
the  good  faith  of  the  first  taker  of  his  property,  to  bestow  the 
use  according  to  his  directions.  This  trust  or  confidence  was 
called  fidei  commissum,  but  there  were  no  means  whereby  the 

^  Stair's  Institutions  of  the  Laws  of  Scotland,  B.  IV.  tit.  6,  §  2,  p.  591; 
§  3,  pp.  592-564. 

2  Erskine's  Institutes  of  the  Laws  of  Scotland,  B.  III.  p.  454. 
2 


CHAP.    I.]  ORIGIN    OF   TRUSTS.  [§  3. 

performance  of  the  commission  could  be  compelled.  It  was 
called  injirmum  or  precarium,  because  it  depended  upon  the 
personal  inclination,  integrity,  and  good  faith  of  the  person 
trusted.  There  were  many  of  these  imperfect  trusts,  where 
in  conscience  the  first  taker  was  bound  to  give  the  beneficial 
use,  or  to  transfer  the  property  itself,  to  a  third  person.  Such 
third  persons  had  an  equitable,  moral  claim  or  right,  but  no 
legal  remedy.  Under  these  circumstances,  application  was 
made  to  the  Emperor  Augustus,  and  he  directed  the  consuls 
to  interpose  their  authority,  and  compel  the  execution  of  such 
trusts.  Finally  a  praetor  was  appointed,  called  Jidei  commis- 
sarius,  who  had  jurisdiction  over  all  fidei  commissa,  and  full 
power  to  give  adequate  relief  in  all  proper  cases.^ 

§  3.  It  is  supposed  that  these  Jidei  commissa  were  the 
models  of  uses  which  were  afterwards  introduced  into  England 
by  the  clergy  to  elude  and  avoid  the  operation  of  the  statutes 
of  mortmain.  After  the  passing  of  those  statutes,  which  were 
intended  to  forbid  and  prevent  the  accumulation  of  the  lands 
of  the  kingdom  in  the  hands  of  religious  houses  and  corpora- 
tions, it  became  the  practice  to  convey  lands  to  one  person  for 
the  use  of  another,  or  for  the  use  of  a  corporation.  Thus  the 
legal  title  was  in  one  individual,  but  the  beneficial  use  was  in 
another.  At  this  time  the  writ  of  subpana  was  contrived, 
which  issued  out  of  chancery,  and  compelled  a  person  who 
held  a  legal  title  to  another's  use  to  answer  in  chancery,  and 
to  perform  and  execute  the  use.  Thus  uses  were  introduced 
in  England  to  circumvent  the  public  policy  of  the  kingdom 
and  to  avoid  the  statutes  of  mortmain,  and  the  writ  of  sub- 
poena was  introduced  after  the  model  of  the  jurisdiction  of 
the  prcetor  commissarius  to  prevent  those  persons  who  were 
trusted  to  execute  a  use,  from  committing  a  fraud  in  refusing 
to  perform  it.^     These  contrivances,  originating  in  evasions 

1  Ulpianus,  tit.  25;  Inst.  Lib.  IT.  tit.  23,  §  2;  2  Fonb.  Eq.  p.  2; 
1  Cruise,  Dig.  p.  398;  and  see  Willis  on  Trustees,  pp.  1-8,  and  notes; 
Bacon,  Readings  upon  the  Stat,  of  Uses,  Vol.  XTV.  pp.  301,  302,  Boston 
ed.  1861. 

"  Att.  Gen.  v.  Sands,  Ilanl.  191.  "The  parents  of  trusts  were  yrau<£ 
and  fear,  and  a  court  of  conscience  was  the  nurse." 

3 


§  4.]  INTRODUCTION.  [CHAP.   L 

of  the  law,  were  laid  hold  of  during  the  civil  wars  of  York 
and  Lancaster  to  facilitate  family  settlements,  and  to  prevent 
the  forfeiture  of  estates  for  treason  during  those  unhappy 
strifes.  Thus  conveyances  to  uses  became  the  common  form 
of  transferring  land. (a) 

§  4.  Under  this  practice  a  very  refined  system  grew  up. 
The  legal  estate  was  in  one  person,  and  the  use  and  enjoy- 
ment was  in  another.  There  were  two  titles  and  estates  in 
the  same  land,  —  that  of  the  feoffee,  who  was  the  legal  owner, 
and  yet  had  nothing,  and  that  of  the  cestui  que  use,  who  had 
the  whole  beneficial  right  and  interest,  and  yet  had  no  legal 
right  or  title.  He  had  nevertheless  a  substantial  interest  and 
estate  which  he  could  convey,  devise,  and  otherwise  deal  with, 
as  with  tangible  property.  Great  inconveniences  arose  from 
this  double  system.  Bacon's  Abridgment,  Uses  and  Trusts, 
sums  them  up  as  follows :  "  By  this  course  of  putting  lands 
into  uses  there  were  many  inconveniences,  as  this  use,  which 
grew  first  from  a  reasonable  cause,  namely,  to  give  men  the 
power  and  liberty  to  dispose  of  their  own,  was  turned  to  de- 
ceive many  of  their  just  and  reasonable  rights,  as,  namely,  a 

(a)  In  Pollock  &  Maitland's  re-  of  the  charter  will  write  ad  opus 
cent  History  of  the  English  Law,  (Johannls)  or  ad  usum  (Joharmis) 
Vol.  II.,  p.  226,  227,  it  is  said:  indifferently,  or  the  fuller  formula 
"  The  germ  of  agency  is  hardly  to  ad  opus  et  ad  usum;  nevertheless, 
be  distinguished  from  the  germ  of  the  earliest  history  of  '  the  use '  is 
another  institution  which  in  our  the  early  history  of  the  phrase  ad 
English  law  has  an  eventful  future  opus.  Now  this,  both  in  France  and 
before  it,  the  'use,  trust  or  confi-  in  England,  we  may  find  in  very 
dence.'  In  tracing  its  embryonic  ancient  days.  .  .  .  In  the  thirteenth 
history,  we  must  first  notice  the  century  we  commonly  find  that 
now  established  truth  that  the  Eng-  -where  there  is  what  to  our  eyes  is 
lish  word  use  when  it  is  employed  an  informal  agency,  this  terra  ad 
with  a  technical  meaning  in  legal  opus  is  used  to  describe  it.  Out- 
documents  is  derived  not  from  the  side  the  ecclesiastical  sphere,  there 
Latin  word  usus,  but  from  the  Latin  is  but  little  talk  of  '  procuration ; ' 
word  opus,  which  in  old  French  there  is  no  current  word  that  is 
becomes  os  or  oes.  True  that  the  equivalent  to  our  offent."  See  also 
two  words  are  in  course  of  time  Mr.  Maitland's  article  on  the  Origin 
confused,  so  that  ...  the  scribe  of  Uses  in  8  Harv.  L.  Rev.  127. 
4 


CHAP.    I.]  HISTOllY    OK    TULSTS.  [§  6. 

man  that  had  cause  to  sue  for  his  land  knew  not  against  whom 
to  bring  his  action  nor  who  was  the  owner  of  it.  The  wife 
was  defrauded  of  her  thirds,  the  husband  of  being  tenant  by 
curtesy,  the  lonl  of  his  wardship,  relief,  licriot,  and  escheat, 
the  creditor  of  his  extent  for  debt,  the  poor  tenant  of  his  lease  ; 
for  these  rights  and  duties  were  given  by  law  from  him  that 
was  owner  of  the  land,  and  none  other,  which  was  now  the 
feoffee  of  the  trust." 

§  5.  Many  statutes  were  passed  during  a  series  of  years  to 
cure  or  to  prevent  these  mischiefs  or  hardships.  At  last  the 
statute  of  uses,  27  Hen.  VIII.  c.  10,  was  enacted,  which  con- 
verted the  beneficial  use  into  the  legal  ownership;  that  is  to 
say,  if  lands  were  conveyed  to  A.  to  the  use  of  B.,  the  statute 
executed  or  converted  the  use  into  a  legal  estate  in  B.,  and 
divested  all  title  out  of  A.  By  the  operation  of  this  statute 
the  Court  of  Chancery  lost  for  a  time  much  of  its  business  ; 
for  after  the  statute  the  legal  title  as  well  as  the  beneficial 
use  was  in  the  cestui  que  use,  and  he  could  deal  with  his  estate 
as  his  own  in  every  respect ;  he  was  no  longer  compelled  to 
appeal  to  the  conscience  of  the  feoffee  to  uses,  nor  to  the 
equity  powers  of  the  court. 

§  6.  But  there  were  certain  gifts,  grants,  or  estates  to  uses 
which  the  statute  did  not  touch,  and  which  remained  as  before 
the  statute.  Thus,  if  A.  enfeoffed  B.  to  the  use  of  C,  in  trust 
for  I).,  the  statute  immediately  transferred  the  legal  estate  to 
C,  and  extinguished  all  interest  in  B.,  but  it  did  not  touch  or 
affect  the  use  or  trust  for  D.  It  had  been  settled  before  the 
statute,  as  a  rule  of  property,  that  a  use  could  not  be  raised 
upon  a  use.  At  law  such  use  raised  upon  a  use  was  simply 
void.  And  at  law  it  was  held  that  the  statute  extended  only 
to  execute  the  first  use  by  transferring  the  legal  estate  from 
B.  to  C,  and  that  all  its  powers  were  exhausted  in  that  act, 
and  thus  C.  held  a  legal  title  in  trust  or  for  the  use  of  D., 
which  the  statute  did  not  execute.^     And  although    C.  was 

1  Reid  V.  Gordon,  35  Md.  183;  Croxall  v.  Shererd,  5  Wall.  268;  Mat- 
thews  r.  Ward,  10  G.  &  J.  443. 

5 


§  7.]  INTRODUCTION.  [CHAP.    I. 

bound  in  equity  and  good  conscience  to  give  to  D.  the  use  and 
enjoyment  of  the  estate,  there  was  no  remedy  for  D.  at  law, 
and  he  could  only  proceed  as  before  the  statute  by  subpoena 
in  chancery  to  compel  C.  to  perform  the  trust.  Again,  if  A. 
conveyed  land  to  B.  for  a  terra  of  years  for  the  use  of  C,  the 
statute  did  not  execute  the  legal  title  in  C,  for  it  was  held, 
under  the  words  of  the  statute,  that  it  only  executed  the  legal 
titles  of  estates  of  which  the  first  taker  was  seized,  and  that 
according  to  the  use  of  the  words  in  the  law  no  one  could  be 
said  to  be  seized  of  a  term  of  years.  Thus  in  this  last  case  C. 
could  have  relief  only  by  subpoena  in  chancery.  And,  again, 
the  statute  did  not  execute  the  legal  title  to  the  ceshd  que  use^ 
if  the  first  taker  was  to  perform  any  active  duties  in  regard  to 
the  estate  ;  as  if  he  was  to  hold  the.  same  for  a  certain  time,  or 
if  he  was  to  improve  or  lease  the  same  and  pay  over  the  rents  and 
profits  to  the  use  of  C,  the  statute  left  the  estate  where  it  was 
before,  and  C.  had  no  redress  for  any  abuse  of  the  trust  or  use 
except  by  subpoena  in  chancery.  And,  further,  the  statute 
did  not  apply  at  all  to  personal  chattels  given  to  one  for  the 
use  and  benefit  of  another.  In  these  four  cases  the  parties 
beneficially  interested  in  the  property,  and  equitably  owning 
the  whole  of  it,  had  no  remedy  at  law  for  any  withholding  of 
their  rights.  The  Court  of  Chancery  laid  hold  of  these  four 
instances  of  a  want  of  redress  at  law,  and  by  its  writ  of  sub- 
poena compelled  the  performance  of  these  four  uses  under  the 
name  of  trusts.  The  legislation  of  our  States  now  recognizes 
trusts,  and  provisions  and  rules  are  made  for  their  creation, 
regulation,  and  duration,  and  in  some  States  for  their  admin- 
istration ;  but  they  are  still  left  to  the  exclusive  cognizance 
and  jurisdiction  of  courts  of  equity,  or  to  the  equity  powers  of 
the  coinmon-law  courts. 

§  7.  Thus  interests  in  land  became  of  three  kinds  :  first, 
the  estate  in  the  laud  itself,  the  old  common-laiv  fee ;  secondly, 
the  use,  which  was  originally  a  creature  of  equity,  but  after 
the  statute  of  uses  it  drew  the  estate  in  the  land  to  itself,  so 
that  the  fee  and  use  were  joined  and  made  but  one  legal  estate, 
not  differing  from  the  old  common-law  fee  except  in  the  man- 
6 


CHAP.    I.]  HISTOKY    OK    TRUSTS.  [§  8. 

ner  of  its  creation;  and,  thirdly,  the  trust  of  which  the  com- 
mon law  takes  no  notice,  but  which  in  a  court  of  equity  carried 
the  beneficial  interest  and  profits,  and  is  still  a  creature  of 
that  court,  as  the  use  was  before  the  statute.^  The  statute  of 
uses  has  never  been  repealed,  and  is  still  in  force  in  many  of 
the  United  States,  so  that  if  a  trust  should  now  be  created  in 
such  form  that  the  statute  would  have  executed  it  if  it  had 
been  a  use,  the  statute  will  now  execute  the  trust  by  giving 
the  cestui  que  trust  the  legal  title  as  well  as  the  equitable 
without  any  action  on  the  part  of  the  trustee.^ 

§  8.  It  is  thus  seen  that  our  present  trusts  are  almost  iden- 
tical with  the  old  uses.^  Of  course  the  growth  of  this  system 
of  jurisprudence  has  been  slow  and  gradual,  and  it  has  some- 
times fallen  into  inconsistencies  and  absurdities  ;  but  the  abil- 
ities of  upright  and  wise  chancellors,  aided  by  a  learned  and 
watchful  profession,  have  finally  given  a  regular  and  simple 
form  to  the  administration  of  trusts.  Lord  Chief  Justice 
Mansfield  observed  that  in  his  opinion  "  trusts  were  not  on  a 
true  foundation  until  Lord  Nottingham  held  the  great  seal. 
By  steadily  pursuing  from  plain  principles  trusts  in  all  their 
consequences,  and  by  some  assistance  from  the  legislature,  a 
noble,  rational,  and  uniform  system  of  law  has  since  been 
raised.  Trusts  are  made  to  answer  the  exigencies  of  families, 
and  all  other  purposes,  without  producing  one  of  the  incon- 
veniences, frauds,  or  private  mischiefs  which  the  statute  of 
Henry  VIIL  c.  10,  was  intended  to  avoid.  The  forum  where 
they  are  adjudged  is  the  only  difference  between  trusts  and 
legal  estates."  *  During  the  development  of  this  system  a  vast 
number  of  distinctions  and  subtleties  have  been  established 
and  exploded.  It  is  not  necessary  to  follow  them,  as  many 
of  them  never  obtained  a  foothold  in  America.^ 

^  Per  Lord  Hardwicke,  in  "Willet  v.  Sandford,  1  Ves.  186 ;  Coryton  v. 
Helyar,  2  Cox,  342. 

*  Shep.  Touch.  508;  post,  §  29G. 

8  Peuny  v.  Allen,  7  De  G.  M.  &  G.  422. 

*  Burgess  r.  Wheate,  1  Eden,  223;  Philips  v.  Brydges,  3  Ves.  127; 
Kemp  V.  Kemp,  5  Ves.  8.58. 

'  See  them  stated  in  Lewiu  on  Trusts,  pp.  2-17. 

7 


§  10.]  INTRODUCTION.  [CHAP.    I. 

§  9.  Lord  Nottingham  became  chancellor  in  1673 ;  conse- 
quently, when  America  was  first  settled,  the  doctrine  of  trusts 
had  not  been  reduced  to  a  system.  Nor  was  there  occasion 
for  many  years  to  apply  the  doctrine  to  the  affairs  of  the 
colonists.  Lands  were  abundant  and  cheap,  and  could  be 
had  by  the  taking;  personal  property  had  not  accumulated: 
habits  of  life  were  simple  and  industrious ;  and  there  was 
little  occasion  for  family  or  other  settlements  that  rendered 
the  intervention  of  a  trustee  either  convenient  or  necessary. 
The  statute  of  uses  was  passed  before  the  colonists  left 
England,  and  it  became  a  part  of  the  law  of  many,  if  not 
all  the  colonies.  The  system  of  trusts  which  grew  upon  the 
statute  of  uses  was  adopted  in  America  much  later.  Even 
in  England  the  development  of  the  equitable  jurisdiction  of 
chancery  met  with  great  opposition,  upon  the  ground,  among 
others,  that  it  subjected  the  laws  of  the  realm  to  the  arbitrary 
discretion  of  one  man,  or  "  made  the  rights  of  the  subject 
depend  upon  the  length  of  the  chancellor's  foot."  Consider- 
ing this  opposition  to  the  equity  jurisdiction  of  the  Court  of 
Chancery  in  England,  considering  that  trusts  were  not  estab- 
lished upon  a  reasonable  foundation  when  the  colonists  left 
England,  and  considering  the  pecuniary  condition  of  America, 
it  is  not  surprising  that  it  was  long  before  the  system  received 
any  countenance  here. 

§  10.  Mr.  Story  says  that  there  was  no  equity  jurisdiction 
in  any  State  prior  to  the  Revolution,  or  at  least  a  very  imper- 
fect and  irregular  administration  of  it.^  There  was  an  attempt 
to  create  such  a  jurisdiction  in  the  province  of  New  York  in 
the  governor  and  council;  but  it  was  so  unpopular ^  that  it 
did  little  or  no  business.  A  court  was  established  in  Massa- 
chusetts in  1692,  with  full  equity  powers ;  but  the  act  failed 
to  receive  the  approval  of  the  king  in  council.^  In  1720  a 
Court  of  Chancery  was  established  in  Pennsylvania,  and  con- 

1  1  Story,  Eq.  Jur.  §  56;  1  Dane,  Ab.  c.  1,  art.  7,  §  51 ;  7  id.  c.  225, 
arts.  1,  2 ;  2  Swift's  Dig.  15 ;  3  Tuck.  Black.  App.  7. 

2  IJohn.  Ch.,  Preface. 

«  Ancient  Char.  c.  222 ;  1  Story,  Eq.  Jur.  §  5G. 
8 


CHAP.   I.]  HISTORY    OF   TRUSTS.  [§  11. 

tinued  to  administer  a  jurisdiction  in  equity  in  a  separate 
court  until  1736.  And  it  is  probable  that  some  of  the  prin- 
ci[»Ies  of  equity  were  administered  in  the  common-law  courts 
of  all  tiie  colonies,  in  order  to  relieve  suitors  from  hardships 
which  the  stricter  rules  of  the  common  law  were  unable  to 
effect.  In  New  York,  New  Jersey,  Virginia,  Pennsylvania, 
and  South  Carolina,  the  governor  of  the  province  was  clothed 
with  the  power  and  duty  of  the  chancellor.^  Since  the  Revo- 
lution, equity  jurisdiction  as  a  system  has  been  of  slow  growth, 
and  it  is  only  since  the  beginning  of  this  century  that  it  has 
received  its  present  development  in  America.  As  property 
has  increased,  and  pecuniary  affairs  have  become  complex, 
and  it  has  become  necessary  or  convenient  to  make  marriage 
settlements,  or  settlements  upon  families,  children,  relations, 
or  dependants,  and  upon  charities,  the  English  system  of 
trusts,  fully  grown,  has  been  introduced  into  most  of  the 
States,  and  they  liave  conferred  full  equity  powers  either 
upon  their  common-law  courts,  or  they  have  established  sep- 
arate courts  with  an  equity  jurisdiction  very  similar  to  the 
jurisdiction  of  the  Lord  Chancellor  in  the  High  Court  of 
Chancery  in  England. ^ 

§  11.  Mr.  Story  further  observes  that  it  is  a  favorable 
circumstance  that  jurisdiction  in  equity  was  conferred  upon 
the  courts  in  America  at  so  late  a  period,  and  therefore  they 
did  not  become  acquainted  with  the  system  until  it  had  been 
settled  upon  a  broad  and  rational  foundation  ;  ^  thus  they  were 
saved  from  crude  and  unintelligent  opinions  and  judgments, 
which  must  have  been  given  in  the  then  condition  of  the  law 
in  England,  and  of  the  profession  in  America.  These  judg- 
ments nmst  of  necessity  have  formed  a  body  of  precedents 
which  would  have  continued  to  plague  the  profession  and  the 
courts,  and  would  have  marred  the  symmetry  of  the  system. 
As  now  established,  the  doctrine  of  equity  and  of  trusts  in 

1  See  Equity  in  Pennsylvania,  a  Lecture  by  William  II.  Rawle,  Esq., 
McKay  &  Brother,  Philadelphia,  1869. 
'^  1  Story,  Eq.  Jur.  §  50,  and  notes. 
'  1  Story,  Eq.  Jur.  §  58. 

9 


§  13.]  INTRODUCTION.  [CHAP.    L 

the  United  States  is  a  well-formed  system ;  and  Mr.  Story 
thinks  it  even  more  symmetrical  than  the  original  system  in 
England. 

§  12.  It  is  not  the  purpose  of  this  treatise  to  trace  the  rise 
and  growth  of  the  law  of  trusts  in  each  one  of  the  States.  It 
is,  on  the  other  hand,  its  purpose  to  state  the  general  prin- 
ciples which  prevail  in  all  the  States.  It  is  not  possible  to 
know  or  to  state  the  legislation  of  so  many  States  upon  the 
various  matters  connected  with  the  administration  of  trusts. 
The  intelligent  lawyer  must  do  this  for  himself,  when  the 
questions  before  him  depend  upon  the  statutes  of  his  State 
rather  than  upon  the  general  principles  common  to  all  the 
States.' 

§  13.  Sir  Edward  Coke's  definition  of  a  use  has  been 
adopted  as  an  accurate  legal  description  and  definition  of  a 
trust.  In  his  words  applied  to  a  use,  "  a  trust  is  a  confidence 
reposed  in  some  other,  not  issuing  out  of  the  land,  but  as  a 
thing  collateral,  annexed  in  privity  to  the  estate  of  the  land, 
and  to  the  person  touching  the  land,  for  which  cestui  que  trust 
has  no  remedy  but  by  subpcena  in  chancery."  ^  The  confidence 
here  spoken  of  need  not  be  expressly  reposed  by  one  party  in 
another,  for  the  law  frequently  implies  or  construes  it  to  arise 
out  of  transactions  between  parties,  when  neither  party  sup- 
posed at  the  time  that  a  trust  was  created  between  them. 
The  trust  or  confidence  is  a  thing  distinguished  from  legal 
property,  or  legal  right  to  property.  It  is  neither  jus  in  re 
nor  jus  ad  rem^  and  so  the  confidence  may  not  always  be  re- 
posed by  a  person  other  than  the  trustee,  for  any  person  may 
convert  himself  into  a  trustee,  and  give  from  his  own  acts  an 

1  See  4  Kent,  Com.  163,  and  notes.  See  Preface  to  Campbell  and 
Oambreleng's  Amer.  Chan.  Dig.  (1828) ;  1  Fonb.  Eq.  11-20,  by  Laussat, 
1831 ;  1  Amer.  Jurist,  314. 

*  Co.  Litt.  272  b.  A  trust  exists  where  the  legal  interest  is  in  one  per- 
son, and  the  equitable  interest  in  another.  Wallace  v.  Wainwright,  87 
Penn.  St.  263. 

3  Wainewright  v.  Elwell,  1  Mad.  336,  Bac.  Uses,  5. 
10 


CHAP.    I.]  DEFINITION    OF    TRUSTS.  [§  14. 

equitable  right  to  another  person,  as  cestui  que  trust.  But  no 
person  can  be  both  trustee  and  cestui  que  trust  at  the  same 
time,  for  no  person  can  sue  a  subpoena  against  liimsclf. 
Therefore,  if  an  equitable  estate  and  a  legal  estate  meet  in  the 
same  person,  the  trust  or  confidence  is  extinguished,  for  the 
equitable  estate  merges  in  the  legal  estate.  As  when  a  father 
holds  the  legal  title  to  land  in  trust  for  an  only  child,  and  the 
father  dies,  such  legal  title  descends  to  the  child  as  only  heir, 
and  thus  both  estates  meet  in  the  same  person.^  But  both 
estates  must  be  commensurate  with  each  other,  otherwise 
there  can  be  no  merger.^ 

§  14.  Again,  a  trust  or  confidence  is  something  collateral 
to  the  land,  and  not  part  or  parcel  of  it.  Thus  a  charge,  an 
incumbrance,  or  a  term  of  years  is  a  legal  title  in,  or  issuing 
out  of,  the  land  itself,  and  binds  every  person,  however  he 
may  come  into  possession  of  the  estate.  The  trust  or  confi- 
dence is  an  incident  to  the  land,  and  so  far  collateral  that  it 
does  not  go  inseparably  with  it.  Thus  it  only  charges  those 
who  are  privy  in  the  estate.  If  the  trustee  is  disseized,  or  if 
he  is  turned  out  of  the  possession  by  a  person  holding  a  para- 
mount title,  the  disseizor  is  not  bound  by  the  trust  or  confi- 
dence, because  there  is  no  privity  of  estate  between  a  disseizor 
and  disseizee.  And  so  there  must  be  privity  between  the  per- 
sons to  be  bound  by  the  trust ;  as,  if  a  trustee  dies,  the  legal 
estate  will  descend  to  his  heir,  who  will  be  bound  by  the  trust, 
because  there  is  both  privity  of  estate  and  of  person  in  such 

1  Goodnight  v.  Wells,  Doug.  771  ;  Selby  v.  Alston,  3  Ves.  339 ;  Har- 
wood  V.  Oglander,  8  Ves.  127  ;  Philips  v.  Brydges,  3  Ves.  126 ;  Wade  r. 
Paget,  1  Bro.  Ch.  363 ;  1  Cox,  76 ;  Finch's  Case,  4  Inst.  85,  Sd  Res. ; 
Creagh  r.  Blood,  3  Jo.  &  La.  133.  So  where  one  of  the  beneficiaries  is 
also  trustee,  to  the  extent  of  such  trustee's  personal  interest.  Bolles  v. 
State  Trust  Co..  27  N.  J.  Eq.  308. 

«  Philips  V.  Brydges,  3  Ves.  12.} ;  Robinson  v.  Cuming,  T.  Talb.  164, 
1  Atk.  473 ;  Boteler  v.  Allington,  1  Bro.  Ch.  72 ;  Kendal  r.  Micfeild, 
Barn.  47;  Buchanan  v.  Harrison,  1  John.  &  Hem.  662;  Habergham  r. 
Vincent,  2  Ves.  Jr.  204;  Merest  v.  James,  6  !Mad.  116;  Canning  r. 
Hicks,  2  Ch.  Cas.  187,  1  Vern.  412  ;  Tabor  i-.  Grover,  2  Vern.  367,  1  Eq. 
Gas.  Ab.  328;  Clerkson  v.  Bowyer,  2  Vern.  66,  193. 

11 


§  17.]  INTRODUCTION.  [CHAP,    L 

a  case.  And  so  if  the  trustee  sell  the  estate  to  a  purchaser 
with  full  notice  of  the  trust  or  confidence,  or  if  he  transfer 
the  estate  to  a  volunteer  without  consideration,  the  estate  and 
the  persons  to  whom  it  comes  in  such  manner  will  be  bound 
by  the  trust,  because  there  is  both  privity  of  estate  and  of 
persons.  But  if  the  trustee  sells  the  estate  to  a  third  person 
for  a  valuable  consideration,  without  notice  of  the  trust, 
neither  the  estate  nor  the  purchaser  for  value  and  without 
notice  will  be  bound  by  the  trust,  for  there  is  in  such  case  no 
privity  between  the  persons.^ 

§  15.  All  those  persons  who  take  under  the  trustee  by  oper- 
ation of  law  are  privies,  both  in  estate  and  in  person,  to  the 
trustee.  Thus  those  who  take  as  heirs  under  the  trustee,  or 
as  tenants  in  dower  or  curtesy,  or  by  extent  of  an  execution,^ 
or  by  an  assignment  in  insolvency  or  bankruptcy,  are  bound 
by  the  trust.  It  has  been  thought  that  a  lord,  who  takes  by 
an  escheat  or  by  a  title  paramount,  would  not  be  bound  by 
the  trust;  but  the  point  has  not  been  adjudged.''' 

§  16.  The  doctrines  of  trusts  are  equally  applicable  to  real 
and  personal  estate,  and  the  same  rules  will  govern  trusts  in 
both  kinds  of  property. 

§  17.  The  cestui  que  trust  has  no  remedy  except  by  subpoena 
in  chancery  ;  that  is,  in  some  court  with  an  equity  jurisdiction, 
adequate  to  decree  relief.*  The  cestui  que  trust  cannot  main- 
tain a  real  action  upon  his  equitable  title,  but  such   action 

1  Finch's  Case,  4  Inst.  85,  1st  Res. ;  Gilbert  on  Uses,  429. 

2  Leake  v.  Leake,  5  Ir.  Eq.  366. 

8  Burgess  V.  Wheate,  1  Eden,  203. 

4  Stuart  V.  Mellish,  2  Atk.  612;  Allen  v.  Imlett,  Holt,  641 ;  Holland's 
Case,  Styl.  41;  Queen  v.  Orton,  14  Q.  B.  139;  Vanderstegen  v.  Witham 
6  M.  &  W.  457 ;  Bond  t;.  Nurse,  10  Q.  B.  244 ;  Edwards  v.  Lowndes,  1  El 
&  Bl.  81;  Drake  v.  Pywall,  1  H.  &  C.  78;  Miller's  Case,  Freem.  283 
Witter  V.  Witter,  3  P.  Wms.  102 ;  King  v.  Jenkins,  3  Dow.  &  R.  41 
Edwards  i-.  Graves,  Hob.  265 ;  Farrington  v.  Knightly,  1  P.  Wras.  549 
McCartney  v.  Bostwick,  32  N.  Y.  33;  Dorsey  v.  Garcey,  30  Md.  489. 
12 


CHAP.   I.]  DEFINITION   OF   TRUSTS.  [§  17. 

must  be  brought  in  the  name  of  the  trustee.^  There  is,  how- 
ever, this  exception,  the  cestui  que  trust  may  maintain  a  real 
action  upon  his  equitable  title  against  a  stranger  who  shows 
no  title,  or  no  title  under  the  trustee. '  But  the  trustee  may 
successfully  defend  the  legal  title  against  a  suit  at  common 
law  by  the  cestui  que  trust  unless  the  trust  has  ceased,  or  the 
trustee  is  enjoined  by  a  court  of  equity.^  And  so  the  grantee 
of  the  trustee  can  defend  such  action,  even  though  the  grant 
may  be  a  breach  of  trust.*  At  one  time  the  common-law 
courts  attempted  to  punish  trustees  for  a  breach  of  trust  in 
damages,  as  upon  an  implied  contract,^  but  the  exercise  of 
such  an  authority  was  soon  abandoned.^  And  the  rule  of 
confining  the  administration  of  trusts  to  the  courts  of  equity 
has  been  carried  so  far  that  the  Court  of  King's  Bench  may 
issue  prohibitions,  forbidding*  spiritual  courts  from  inter- 
meddling with  a  trust."  But  a  bill  in  equity  cannot  be  main- 
tained simply  to  establish  the  fact  of  a  trust,  no  other  relief 
being  sought,  even  where  its  existence  is  denied  ;  if,  however, 
the  supposed  trustee  is  about  to  leave  the  jurisdiction,  so  that 
no  relief  could  be  obtained,  the  court  will  entertain  the  bill, 

^  Davis  V.  Charles  River  R.  Co.,  11  Cush.  506;  Raymond  v.  Holden, 
2  Cush.  268;  Chapin  v.  Universalist  Soc,  8  Gray,  581  ;  Crane  v.  Crane, 
4  Gray,  323;  Fitzpatrick  v.  Fitzgerald,  13  Gray,  400;  Baptist  Soc.  v. 
Hazen,  100  Mass.  322  ;  Mordecai  v.  Parker,  3  Dev.  425 ;  Cox  v.  Walker, 
26  Maine,  504  ;  Matthews  v.  Ward,  10  G.  &  J.  443  ;  Beach  v.  Beach,  14 
Vt.  28;  Wright  v.  Douglass,  3  Barb.  559;  Moore  v.  Burnet,  11  Ohio,  334; 
Hopkins  v.  Ward,  6  Munf.  38 ;  Daggett  v.  Hart,  5  Fla.  215  ;  Goodtitle  v. 
Jones,  7  T.  R.  47. 

^  Stearns  v.  Palmer,  10  Met.  35;  Queen  v.  Abrahams,  4  Q.  B.  157; 
Roper  1-.  Holland,  3  Ad.  &  El.  99  ;  Sloper  v.  Cottrell,  2  Jur.  n.  s.  1046. 

'  Obert  r.  Bordine,  1  Spencer,  394;  NicoU  v.  Walworth,  4  Denio,  385; 
Stearns  v.  Palmer,  10  Met.  35. 

*  Stearns  v.  Palmer,  10  Met.  35;  Canoy  v.  Troutman,  7  Ired.  155; 
Taylor  v.  King,  6  Munf.  358  ;  Reece  v.  Allen,  5  Gilm.  241. 

^  Megod's  Case,  Godb.  64  ;  Jevon  r.  Bush,  1  Vern.  314 ;  Smith  v. 
Jameson,  5  T.  R.  603,  1  Eq.  Cas.  Ab.  384,  D.  A. 

*  Barnadiston  !).  Soaine,  7  St.  Trials,  443 ;  Sturt  v.  Mellish,  2  Atk. 
612  ;  Holland's  Case,  Styl.  41 ;  Allen  f.  Imlett,  Holt,  14  ;  Burnett  r. 
Preston,  17  Ind.  291. 

'  Petit  V.  Smith,  1  P.  Wms.  7  ;  Edwards  v.  Freeman.  2  P.  Wms.  441; 
Barker  v.  May,  4  M.  &  R.  386;  Ex  parte  Jenkins,  1  B.  &  C.  655. 

13 


§  19.]  INTRODUCTION.  [CHAP.   L 

and  declare  the  trust  if  proved,  and  retain  the  bill  for  further 
action.^  In  Pennsylvania,  ejectment  is  an  equitable  action, 
and  may  be  maintained  by  the  cestui  que  trust,  even  against 
the  trustee,  when  the  former  is  entitled  to  the  possession.* 

§  18.  Trusts  are  divided  into  simple  and  special  trusts.  A 
gimple  trust  is  a  simple  conveyance  of  property  to  one  upon 
trust  for  another,  without  further  specifications  or  directions. 
In  such  case  the  law  regulates  the  trust,  and  the  cestui  que 
trust  has  the  right  of  possession  and  of  disposing  of  the  prop- 
erty, and  he  may  call  upon  the  trustee  to  execute  such  con- 
veyances of  the  legal  estate  as  are  necessary.  A  special  trust 
is  where  special  and  particular  duties  are  pointed  out  to  be 
performed  by  the  trustee.  In  such  cases  he  is  not  a  mere 
passive  agent,  but  he  has  active  duties  to  perform,  as  when 
an  estate  is  given  to  a  person  to  sell,  and  from  the  proceeds 
to  pay  the  debts  of  the  settlor. 

§  19.  Trusts  have  been  further  divided  into  ministerial  and 
discretionary  trusts.  A  trust  to  do  a  simple  act,  as  to  con- 
vey to  the  cestui  que  trust,  at  his  request,  is  a  ministerial  trust, 
as  it  is  a  mere  ministerial  or  instrumental  act  requiring  the 
exercise  of  no  judgment  or  discretion ;  but  if  a  choice  of  time, 
manner,  or  place  is  given  to  the  trustee,  or  if  he  must  use 
his  best  judgment  in  the  execution  of  the  trust,  it  is  a  discre- 
tionary trust.3  Mr.  Fearne  contends  that  a  trust  to  sell  is  a 
ministerial  trust,  for  the  price  is  not  arbitrary,  nor  at  the 
trustee's  discretion,  but  is  to  be  the  best  that  can  be  ob- 
tained ;*  but  Mr.  Lewin  insists  that  it  is  a  discretionary  trust, 
as  there  is  much  room  for  judgment  in  the  proceeding,^  and  it 

1  Baylies  v.  Payson,  5  Allen,  473 ;  Price  t- .  Minot,  107  Mass.  62. 

2  Kennedy  v.  Fury,  1  Dall.  76 ;  Presbyterian  Cong.  v.  Johnston,  1  W 
&  S.  56;  School,  &c.  v.  Dunkleberger,  6  Barr,  29. 

»  Att.  Gen.  v.  Gleg,  1  Atk.  356;  Cole  v.  Wade,  16  Ves.  27;  Gower  v. 
Mainwaring,  2  Ves.  87;  Hibbard  v.  Lamb,  Arab.  309;  Potter  v.  Chap- 
man, Arab.  98;  Att.  Gen.  v.  Scott,  1  Ves.  413,  4  Kent.  Com.  304,  305. 

*  Fearne's  P.  W.  313. 

*  Lewin  on  Trusta,  19;  Kingw.  Bellord,  1  Hem.  &  Mil.  343;  Robson 

14 


CHAP.    I.]  CLASSIFICATION    OF   TRUSTS.  [§  21. 

may  be  added  that  there  is  room  for  skill  in  procuring  the 
best  possible  price.  But  the  distinction  is  not  very  impor- 
tant, as  the  duties  of  a  trustee  for  sale  are  the  same,  wheth<'r 
the  trust  is  called  ministerial  or  discretionary. 

§  20.  There  is  a  mixed  trust  and  power,  as  where  the 
settlor  sketches  the  outline  of  a  trust  and  leaves  the  details 
to  be  settled  and  carried  into  effect,  according  to  the  best 
judgment  of  his  trustees.  The  power  joined  to  the  trust  in 
such  case  is  imperative  and  must  be  exercised  ;  but  the  mode 
of  its  execution  is  a  matter  of  judgment  and  discretionary. 
But  this  kind  of  trust  and  power  is  not  to  be  confounded 
ivith  a  trust  to  ivhicli  a  power  is  annexed.  In  this  case  the 
trust  is  complete  in  itself,  and  the  power  is  a  simple  addition, 
which  may  or  may  not  be  exercised,  as  the  trustee  shall 
choose,  as  where  lands  are  given  to  trustees  for  a  particular 
purpose,  and  a  power  of  sale,  or  of  changing  the  securities,  is 
added  ;  the  power  is  no  part  of  the  trust,  but  it  is  something 
collateral,  which  the  court  cannot  compel  the  trustee  to  per- 
form. But  a  trust  to  distribute  the  trust  fund  according  to 
the  discretion  of  the  trustee  is  an  imperative  trust  and  power.^ 

§  21.  Trusts  are  also  said  to  be  legal  or  illegal.  Trusts 
are  legal  when  they  are  for  some  honest  purpose,  as  to  pay 
debts  or  make  a  provision  for  families.  They  are  illegal  when 
they  are  for  purposes  of  immorality,  or  vice,  or  of  defrauding 
creditors,  or  contravene  some  statute,  or  are  contrary  to  public 
policy.  In  such  case  a  court  of  equity  will  not  give  its  aid  in 
carrying  them  into  execution.^  (a) 

V.  Flight,  5  N.  R.  344;  4  De  G.,  J.  &  S.  608 ;  Clarke  v.  Royal  Panopticon, 
4  Drew.  29. 

1  Cole  V.  Wade,  16  Ves.  43;  Gower  v.  Mainwaring,  2  Ves.  89;  Steere 
V.  Steere,  5  John.  Ch.  1. 

^  Bacon  on  Uses,  9;  Lewis  v.  Nelson,  14  N.  J.  Eq.  94. 

(a)  Thus,  a  bill  in  equity  for  an    seceding    States   during   the    Civil 
account  cannot  be  maintained  by  a     War.     Siiell  v.   Dwight,  120  Mass. 
partner  against  his  co-partners  as  to     9;  Dunham  v.  Presby,  id.  285. 
transactions  with  inhabitants  of  the  The   combinations   or  "  trusts  " 

15 


§23.] 


mXRODUCTlON. 


[chap.  I. 


§  22.  Again,  trusts  are  either  public  or  private.  Private 
trusts  concern  only  individuals  or  families,  for  private  con- 
venience and  support.  Public  trusts  are  for  public  charities 
or  for  the  general  public  good.  They  concern  the  general 
and  indefinite  public. 

§  23.  Private  trusts  which  concern  individuals  are  limited 
in  their  duration.  Being  for  individuals,  they  must  be  certain, 
and  the  individual  or  individuals  must  be  identified  within  a 
limited  period.     They  can  endure  only  for  a  life  or  lives  ^  in 

1  It  is  immaterial  whether  the  designated  lives  are  those  of  the  bene- 
ficiaries or  others.     Crooke  v.  King's  County,  97  N.  Y.  421. 

The  Act  of  Congress  of  July  2, 
1890,  ch.  647  (26  Stat,  at  Large, 
209),  known  as  "  The  Sherman  Anti- 
Trust  Act,"  and  entitled  "  An  Act 


that  have  sprung  up  in  recent  years, 
for  the  purpose  of  controlling  prices 
by  uniting  all  those  engaged  in  any 
great  industry,  are  in  strictness  il- 
legal as  amounting  to  monopolies. 
See  e.  g..,  People  v.  Chicago  Gas 
Trust  Co.,  130  111.  268;  More  v. 
Bennett,  140  111.  69;  Bishop  v. 
American  Preservers'  Co.,  157  111. 
284  ;  People  v.  North  River  Sugar 
Ref.  Co.,  121  N.  Y.  582;  Bath  Gas 
Light  Co.  V.  Claffy,  151  N.  Y.  24, 
43;  State  v.  Standard  Oil  Co.,  49 
Ohio  St.  137;  United  States  v. 
Addyston  Co.,  78  F.  R.  712  ;  24 
Am.  Law  Rev.  143 ;  29  id.  293  ;  33 
id.  63, 142 ;  30  Am.  Law  Reg.  n.  s. 
751;  7  Harv.  L.  Rev.  338;  11  id. 
80.  The  holder  of  certificates  of 
such  a  "  trust,"  which  bind  him  to 
the  terms  of  its  formation,  so  far 
participates  in  its  illegality  that  he 
cannot  maintain  a  bill  in  equity 
against  its  trustees  for  an  account- 
ing. Uuckles  V.  Colgate,  148  N.  Y. 
529.  But  forfeiture  of  a  corporate 
charter  for  this  cause  can  be  en- 
forced only  by  the  State.  Coquard 
V.  National  Linseed  Oil  Co.,  171 
111.  480;  Blindell  v.  Hagan,  54  F. 
R.  40  ;  Greer  v.  StoUer,  77  id.  1. 

16 


to  protect  trade  and  commerce 
against  unlawful  restraints  and  mo- 
nopolies," has  been  held  by  the 
United  States  Supreme  Court  not 
to  apply  to  a  combination  of  corpo- 
rations whose  primary  business  is 
that  of  manufacturing  rather  than 
of  selling,  such  a  combination  being 
regarded  as  within  the  police  power 
of  the  States,  and  not  as  infringing 
upon  interstate  commerce.  United 
States  V.  E.  C  Knight  Co.,  156  U.  S. 
1  ;  s.  c.  60  F.  R.  306,  934;  Lowen- 
stein  V,  Evans,  69  F.  R.  908.  The 
act  is  constitutional,  United  States 
V.  Joint  TraflBc  Ass'n,  171  U.  S.  505; 
and  applies  to  all  contracts  in  re- 
straint of  interstate  commerce,  irre- 
spective of  their  reasonableness. 
United  States  v.  Trans-Missouri 
Freight  Ass'n,  162  U.  S.  290.  The 
remedy  of  a  private  citizen  injured 
by  a  violation  of  this  statute  is  by 
action  at  law  for  damages,  and  not 
by  a  bill  in  equity.  Southern  Indi- 
ana Express  Co.  v.  U.  S.  Express 
Co.,  88  F.  R.  659 


CHAP.    I.]  CLASSIFICATION    OF    TKUSTS.  [§  25. 

being,  and  twenty-one  years  and  the  period  of  gestation  in 
addition.'  On  the  other  hand,  public  trusts  or  charities,  ex- 
isting for  the  general  and  indefinite  public,  may  continue  for 
an  indefinite  period.^  It  must  be  kept  in  mind,  however,  that 
this  rule  against  perpetuities  only  applies  to  cases  in  which 
the  j)0wer  of  alienation  is  suspended,  and  that  the  creation  of 
a  trust  docs  not  necessarily  result  in  such  suspension,  for  the 
trustee  may  have  the  right  to  alienate,^  and  that  the  terms 
of  the  law  arc  not  everywhere  the  same.  For  example,  in 
New  York  the  ownership  of  personal  property  cannot  be  sus- 
pended for  more  than  two  lives,  while  the  alienation  of  real 
estate  may  be  suspended  for  two  lives  and  a  minority.* 

§  24.  Trusts  are  divided  in  reference  to  their  creation  into 
express  trusts,  implied  trusts,  resulting  trusts,  and  construc- 
tive trusts.^  Express  trusts  are  also  called  direct  trusts. 
They  are  generally  created  by  instruments  that  point  out 
directly  and  expressly  the  pro[)erty,  persons,  and  purposes  of 
the  trust ;  hence  they  are  called  direct  or  express  trusts  in 
contradistinction  from  those  trusts  that  are  implied,  presumed, 
or  construed  by  law  to  arise  out  of  the  transactions  of  parties. 
They  may  be  discretionary  or  imperative,  absolute  or  on  con- 
dition.^ As  express  trusts  are  directly  declared  by  the  par- 
ties, there  can  never  be  a  controversy  whether  they  exist  or 
not.  In  such  trusts  these  questions  arise  :  Are  they  legal  or 
illegal,  and  what  is  the  construction  of  the  various  terms  and 
provisions  w^hich  they  contain  ? 

§  25.  Implied  trusts  are  trusts  that  the  courts  imply  from 
the  words  of  an  instrument,  where  no  express  trust  is  de- 

1  Rice  V.  Barrett,  102  N.  Y.  161. 

^  Christ's  Hospital  v.  Grainger,  1  Mac.  &  G.  460 ;  Att.  Geu.  i'.  Aspi- 
nall,  2  M.  &  Cr.  622 ;  Att.  Gen.  v.  Ileelis,  2  S.  &  S.  76  ;  Att.  Gen.  v. 
Shrewsbuiy,  6  Beav.  220;  Walker  v.  Richardson,  2  M.  &  W.  892.  See 
Att.  Gen.  v.  Forster,  10  Ves.  344;  Att.  Gen.  r.  Newcombe,  14  Ves.  1; 
Fearon  v.  Webb,  14  Ves.  19. 

8  Robert  v.  Corning,  89  N.  Y.  225. 

*  Cook  V.  Lowry,  29  Ilun,  28. 

*  See  the  definitions  iu  Russell  v.  Peyton,  4  Brad.  (111.)  473. 
«  Little  r.  Wilcox,  119  Penn.  St.  439. 

VOL.    I.  —2  17 


I  27.]  INTRODUCTION.  [CHAP.  L 

clared,  but  such  words  are  used  that  the  court  infers  or  implies 
that  it  was  the  purpose  or  intention  of  the  parties  to  create  a 
trust. 

§  26.  Resulting  trusts  are  trusts  that  the  courts  presume 
to  arise  out  of  the  transactions  of  parties,  as  if  one  man  pays 
the  purchase-money  for  an  estate,  and  the  deed  is  taken  in 
the  name  of  another.  Courts  presume  that  a  trust  is  in- 
tended for  the  person  who  pays  the  money. 

§  27.  A  constructive  trust  is  one  that  arises  when  a  person, 
clothed  with  some  fiduciary  character,  by  fraud  or  otherwise 
gains  some  advantage  to  himself.  Courts  construe  this  to  be 
an  advantage  for  the  cestui  que  trust  or  a  constructive  trust. 


18 


CHAP.  II.]         PARTIES  TO  TRUSTS,  ETC. 


CHAPTER  II. 

PARTIES   TO   TRUSTS  ;   AND   WHAT   PROPERTY   MAY   BE  THE 
SUBJECT   OP   A    TRUST. 

L  §§  28-37.  Who  may  create  a  trust. 

§  28.  All  persons  competent  to  contract  or  make  wills  may  create 

trusts. 

§  29.  The  king  may  create  trusts. 

§  30.  The  State  may  create  trusts  ;  and  so  may  all  its  officers. 

§  31.  Corporations  may  create  trusts. 

§  32.  The  power  of  married  women  to  create  trusts. 

§  33.  Capacity  and  power  of  infants  to  create  trusts. 

§  34.  The  marriage  settlements  of  infants. 

§  35.  Of  the  ability  of  lunatics  to  create  trusts. 

§  36.  Of  conveyances  in  trust  by  aliens. 

§  37.  Trusts  by  bankrupts  and  insolvents. 

II.  §§  38-59.  Who  may  be  a  trustee. 

§  38.  A  person  may  convert  him.self  into  a  trustee. 

§  39.  Any  person  capable  of  taking  the  legal  title  may  take  aj 
trustee.     Rules  that  govern  courts  in  appointing  trustees. 

§  40.  The  sovereign  may  be  trustee.     Question  as  to  remedy. 

§  41.  The  United  States  and  the  several  States  may  be  trustees. 

§§  42-45.  Corporations  may  be  trustees. 

§  46.  Unincorporated  societies  may  be  trustees  for  charitable  pur- 
poses. 

§  47.  Public  officers  as  trustees. 

§§  48-51.  Married  women  as  trustees. 

§§  52-54.  Infants  as  trustees. 

§  55.  Aliens  as  trustees. 

§  56.  Lunatics  as  trustees. 

§  57.  A  religious  person  or  nun  as  trustee. 

§  58.  A  bankrupt  as  trustee. 

§  59.  Cestui  que  trust  may  be  a  trustee  for  himself  and  others. 

III.  §§  60-66.     Who  may  be  cestui  que  trust. 

§  60.  All  persons  may  be  cestuis  que  trust  who  may  take  the  legal 

title. 
§§  61,  62.  The  Crown  and  the  State  may  be  cestuis  que  trust. 

§  63.  Corporations  as  cestuis  que  trust. 

§  64.  Aliens  as  cestuis  que  trust. 

§  65.  Those  who  cannot  take  a  legal  interest  cannot  take  an  cqah 

table  interest. 
§  66.  Except  in  certain  charitable  trastt. 

19 


§  30.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP.   IL- 

IV.  §§  67-72.     What  property  may  be  the  subject  of  a  trust. 

§  67.  A  trust  may  be  created  in  every  kind  of  valuable  property. 

§  68.  Possibilities,  choses  in  action,  expectancies,  and  property  not 

at  the  time  in  esse  may  be  a.ssigned  in  trust. 
§  69  Choses  in  action  and  expectancies  that  cannot  be  assigned  in 

trust. 
§§71,  72.  Trusts  in  land  lying  in  a  foreign  jurisdiction,  and  their  ad- 

administration. 

I.     WIio  may  create  a   Trust. 

§  28.  It  may  be  stated,  as  a  general  proposition,  that  every- 
one competent  to  enter  into  a  contract,  or  to  make  a  will,  or 
to  deal  with  the  legal  title  to  property,  may  make  such  dis- 
position of  it  as  he  pleases ;  and  he  may  annex  such  condi- 
tions and  limitations  to  the  enjoyment  of  it  as  he  sees  fit ; 
and  he  may  vest  it  in  trustees  for  the  purpose  of  carrying  out 
his  intention.  All  persons,  sui  juris,  have  the  same  power  to 
create  trusts  that  they  have  to  make  a  disposition  of  their 
property.  A  conveyance  or  disposition  of  property  by  persons 
not  sid  juris  is  valid  to  the  extent  of  their  legal  capacity. 

§  29.  The  king  may,  by  charter,  grant  his  private  property 
to  one  person  upon  trust  for  another.^  But  the  trust  must 
appear  upon  the  face  of  the  patent,  and  cannot  be  proved  by 
parol.2  He  can  also  by  will  in  writing  under  the  sign-manual 
bequeath  his  private  personal  property  to  trustees  for  the  use 
of  another.^  He  may  by  warrant  grant  prizes  taken  in  war  to 
trustees,  to  be  distributed  among  the  captors,*  and  by  statute 
he  is  authorized  to  convey  trust  property  which  has  escheated 
to  the  Crown  to  trustees  to  execute  the  trust.^ 

§  30.  In  the  United  States  the  sovereignty  resides  in  the 
organized  people ;   and   all   public  officers    are    subjects  and 

^  Bacon  on  Uses,  66. 

2  Fordyce  v.  Willis,  3  Bro.  Ch.  577. 

»  39  &  40  Geo.  III.  c.  88.  But  it  is  said  that  probate  of  his  will  can 
not  be  granted.     Williams's  Ex'rs,  13. 

*  Alexander  i'.  Duke  of  Wellington,  2  R.  &  M.  35 ;  Stevens  v.  Bag- 
well, 15  Ves.  140.  But  it  is  said  that  the  cestui  que  trust  cannot  maintain 
a  suit  against  the  trustees  in  such  cases. 

«  39  &  40  Geo.  ITI.  c.  88. 

20 


CHAP.    II.]  MARRIED    WOMEN.  [§  32. 

citizens,  and  they  can  convey  their  private  property  to  trus- 
tees in  the  same  manner  as  private  individuals.  The  State 
itself  by  its  legislation,  or  hy  its  public  officers  duly  uuthorizod, 
can  create  a  trust,  convey  property,  and  appoint  trustees ;  ^ 
and  such  trustees  are  equally  amenable  to  the  jurisdiction  of 
chancery.^  But  a  State  cannot  remove  the  trustees  of  a  pri- 
vate corporation  and  appoint  others  in  their  stcad.^ 

§  31.  All  corporations,  subject  to  the  terms  of  the  charters 
and  laws  under  which  they  exist,  may  alienate  their 
property ;  and  their  power  to  appoint  trustees  and  to  declare 
in  what  manner  the  property  shall  be  enjoyed,  is  coextensive 
with  the  right  of  alienation.* 

§  32.  By  the  civil  law  married  women  could  alienate  their 
property  and  dispose  of  it  by  will.  By  the  common  law  they 
were  almost  wholly  incapacitated  from  dealing  with  their 
estates.  The  tendency  of  modern  legislation  is  to  remove 
these  disabilities,  and  to  enable  them  to  make  contracts  and 
wills,  as  if  they  were  sole,  in  relation  to  property  held  by 
them  in  their  own  right.  By  joining  their  husbands  in  fines 
and  recoveries  in  England,^  and  in  deeds  in  America  executed 
according  to  the  prescribed  formalities,  they  can,  as  a 
general  rule,   convey  their  })roperty  to   trustees.^     In   those 

1  Commissioners  v.  AValker,  G  How.  (Miss.)  143,  -iS  Am.  Dec.  433. 
'  Cotterel  v.  Ilampson,  2  A'eru.  ;"> ;  Buchanan  v.  Hamilton,  5  Ves.  722. 
'  State  V.  Bryce,  7  Ohio,  414  ;  Dart.  College  v.  Woodward,  4  WheaL. 
518. 

*  Colchester  v.  Lowten,  1  V.  &  B.  220;  Att.  Gen.  v.  Aspinall,  2  :\I.  & 
Cr.  61:3 ;  Att.  Gen.  v.  Wilson,  1  Cr.  &  Ph.  1 ;  Catlin  v.  Eagle  Bank,  6 
Conn.  2;]o  ;  State  of  IMaryland  r.  Bank  of  ]\Iaryland,  6  Gill  &  J.  205  ; 
Dana  v.  Bank  of  United  States,  5  W.  &  S.  224;  Arthur  v.  Comm.  Bank, 
9  S.  &  M.  394 ;  Barry  v.  I^Ierchants'  Exch.  Co.,  1  Sand.  Ch.  280  ;  Hopkins 
V.  Turnpike  Co.,  4  Humph.  403  ;  Reynolds  v.  Stark  County,  o  Ham.  204; 
Angell  on  Corp.  §  191  ;  Barings  v.  Dabney,  1!)  Wall.  1.  In  England, 
municipal  corporations  are  declared  by  statute  to  be  trustees  of  their  real 
and  personal  estate,  and  they  are  debarred  from  alienating  it  without  the 
consent  of  the  Lords  of  the  Treasury.     5  &  0  Wm.  IV.  c.  76,  §  94. 

»  3  &  4  Wm.  IV.  c.  74. 

*  Durant  r.  Ritchie,  4  Mason,  45.  And  they  can  make  mortgages  of 
their  property  with  powers  of  sale.     Young  v.  Graff,  28  111.  20. 

21 


§  32.J  PARTIES    TO   TRUSTS,   ETC.  [CHAP.   II. 

States  where  a  married  woman  can  convey  her  real  and 
personal  property  without  joining  her  husband,  she  can  con- 
vey it  to  trustees  to  such  uses  as  she  may  appoint;  and 
where  statutes  have  given  her  a  testamentary  capacity,  she 
can  create  trusts  and  appoint  trustees  by  her  will.  ^  A  mar- 
ried woman  is  considered  in  all  respects  as  a  feme  sole  in 
regard  to  property  settled  to  her  separate  use;^  as  if  real 
estate  is  conveyed  to  a  trustee  and  his  heirs,  or  if  personal 
estate  is  assigned  to  a  trustee  and  his  executors,  for  her  sole 
and  separate  use,  the  absolute  interest  to  be  at  her  sole  dis- 
posal, she  has  the  entire  control,  and  may  exercise  her 
ownership  or  implied  power  of  appointment  by  creating  a 
trust  extending  even  beyond  her  coverture.^  If  she  is  tenant 
for  life,  to  her  sole  use,  she  can  make  a  settlement  of  her 
life-estate.  But  if  the  power  of  anticipation  is  restrained, 
she  can  make  no  disposition  except  of  the  annual  produce 
which  has  actually  accrued  or  become  due.  A  married 
woman  will  be  treated  as  a  feme  sole  only  in  regard  to 
property  settled  upon  her;  and  her  power  of  disposing  of 
property  thus  settled  will  be  governed  by  a  strict  interpreta- 
tion of  the  instrument  of  settlement.  If  the  deed  of  settle- 
ment points  out  the  manner  in  which  she  may  dispose  of  her 
interest,  she  must  follow  that  particular  manner;  as  if  the 
power  is  given  her  to  convey  or  appoint  by  deed,  she  cannot 
convey  or  appoint  by  will ;  and  if  by  will,  she  cannot  convey 
by  deed.  If  the  instrument  is  silent  as  to  her  power  to 
convey,  she  may  devise  the  property  by  will.*  Savings  by  a 
wife  out  of  an  allowance  made  by  her  husband  for  her  sepa- 
rate maintenance  are  treated  in  equity  as  her  separate  estate, 
which  she  may  dispose  of;^  and  so  are  the  accumulations 

1  1  Redfield  on  Wills,  pp.  21-28. 

'  Lewin  on  Trusts,  p.  23  (11th  London  ed.);  Hill  on  Trustees,  p.  421 
(4th  Amer.  ed.). 

3  The  English  rule  is  stated  in  the  text.  The  courts  in  some  of  the 
United  States  follow  the  same  rule ;  in  others  a  different  rule  is  estab- 
lished. All  the  distinctions  are  stated,  and  the  authorities  collected  in 
the  chapter  upon  Trusts  for  Married  Women. 

*  Mory  V.  Michael,  18  Md.  227. 

•  Brooke  v.  Brooke,  25  Beav.  342. 

22 


CHA.P.    II.]  INFANTS.  [§  33. 

and  savings  from  the  income  of  a  trust  for  her  sole  benefit  J 
But  savings  from  pin-money  allowed  by  the  husband  for  the 
personal  expenses,  clothing,  and  adornment  of  the  wife, 
revert  to  the  husband,  and  the  wife  cannot  dispose  of 
them.  2  (a) 

§  33.  Infants  can  create  trusts  which  are  good  until  they 
are  avoided. ^  The  tendency  of  modern  decisions  is  to  hold 
that  the  acts  and  contracts  of  infants  are  voidable  only,  and 
subject  to  their  election  when  of  age  either  to  avoid  or  con- 
firm them.*  Mr.  Greenleaf  says  that  "it  may  be  safely 
stated  as  the  result  of  the  American  authorities,  that  the  act 
or  contract  of  an  infant  is  in  no  case  to  be  held  purely  void, 
unless  from  its  nature  and  solemnity,  as  well  as  from  the 
operation  of  the  instrument,  it  was  manifestly  and  neces- 
sarily prejudicial  to  him.  Wherever  it  may  be  for  his 
benefit,  it  is  at  most  but  voidable;  and  if  it  be  an  act  which 
it  was  either  his  duty^  to  do,  or  was  manifestly  for  his  bene- 
fit, it  shall  bind  him."®  But  a  court  of  equity  would  not 
allow  an  equitable  interest  to  be  enforced  against  an  infant 
to  his  prejudice,  and  would  give  him  the  same  power  of 
avoidance  over  the  equitable,  as  over  the  legal  estate.  And 
if  the  infant  died  without  having  avoided  the  trust,  the  court 

1  Story,  Eq.  Jur.  §  1375  ;  Frazier  v.  Center,  1  McCord,  Eq.  270 ;  Pic- 
quet  V.  Swan,  4  Mason,  455. 

2  Jodrell  V.  Jodrell,  9  Beav.  45;  Story,  Eq.  Jur.  §  1375  a. 

'  Co.  Litt.  248  a;  Hearle  v.  Greenbauk,  1  Ves.  304  ;  Ownes  v.  Ownes, 

8  C.  E.  Green,  60;  Zouch  v.  Parsons,  3  Burr.  1794;  Bool  v.  Mix,  17 
Wend.  119;  Eagle  F.  Ins.  Co.  v.  Lent,  6  Paige,  635;  Tucker  v.  More- 
land,  10  Pet.  71,  2  Kent,  2.34  ;  Gillett  v.  Stanley,  1  Hill,  121. 

*  2  Kent,  235;  Tucker  v.  Moreland,  10  Pet.  58,  71;  Irvine  v.  Irvine, 

9  Wall.  617. 

6  Zouch  V.  Parsons,  3  Burr.  1794,  2  Kent,  234-236 ;  People  t-.  Moores, 
4  Denio,  518;   McCall  v.  Parker,  13  Met.  372. 

'  4  Cruise,  Dig.  by  Greenleaf,  p.  15,  note,  and  authorities  cited;  Eagle 
Fire  Co.  i;.  Lent,  1  Edw.  Ch.  301 ;  6  Paige,  635. 

(a)  The  English   Married   Wo-  phernalia.        Tasker     t;.      Tasker, 

men's  Property  Act  of  1882  did  not  [1895]  P.  1.    See  30  Am.  Law  Rev. 

have   the   effect  of   abolishing  the  557. 
common-law  rule  as  to  gifts  of  para- 

23 


§  34.]  PARTIES    TO   TRUSTS,    ETC.  [CHAP.    IL 

will  still  investigate  the  transaction  and  see  that  no  unfair 
advantage  was  taken.  ^  But  if  the  infant  is  still  alive,  no 
one  but  himself  can  object  to  his   deed,^ 

§  34.  The  effect  of  a  marriage  settlement  by  a  female 
infant,  by  which  her  real  and  personal  estate  is  conveyed  to 
trustees,  has  been  frequently  mooted  in  courts.  It  has  been 
decided  that  as  infants  may  contract  marriage,  a  settlement 
made  by  the  consent  of  their  parents  and  guardians  in  con- 
sideration of  a  marriage  to  be  afterwards  solemnized,  should 
be  binding,  inasmuch  as  if  the  marriage  afterwards  takes 
place,  the  situation  of  the  parties  is  altered,  and  the  interests 
of  third  persons,  or  children  born  of  the  marriage,  may  be 
affected.  Lord  Macclesfield  and  Lord  Hardwicke  upon  these 
considerations  refused  to  disturb  such  settlements.'*  But 
Lord  Thurlow  dissented  from  these  opinions;*  and  the  law 
is  now  settled,  that  a  deed,  executed  by  a  female  infant  in 
consideration  of  marriage,  does  not  bind  her  real  estate, 
unless,  having  come  of  age,  she  assents  to  it  after  the  death 
of  her  husband.^  There  is  no  reason  why  the  marriage 
settlement  of  a  male  infant  should  not  be  governed  by  the 
same  rule,  except  that  he  could  confirm  the  same  after  he 
became  of  age,  and  before  the  death  of  his  wife.  The  settle- 
ment will  bind  the  husband  if  he  is  of  full  age.  ^     It  has  been 

1  Lewin  on  Trusts,  p.  25  ;  4  Cruise,  Dig.  p.  130  ;  Starr  v.  Wright,  20 
Ohio  St.  97. 

2  Ingraham  v.  Baldwin,  12  Barb.  9,  19. 

5  Cannel  v.  Buckle,  2  P.  Wms.  243;  Harvey  i-.  Ashley,  3  Atk.  607; 
Tabb  V.  Archer,  3  Hen.  &  M.  399;  Healy  v.  Rowan,  5  Gratt.  414  ;  Lester 
V.  Frazer,  Ililey,  Ch.  76 ;  2  Hill,  Ch.  529. 

*  Durnford  v.  Lane,  1  Bro.  Ch.  106. 

5  Milner  v.  Lord  Harewood,  18  Ves.  259;  TroUope  v.  Linton,  1  Sim. 
&  Stu.  477  ;  Simson  v.  Jones,  2  Russ.  &  My.  365 ;  Temple  v.  Hawley,  1 
Sand.  Ch.  1.53;  Dominick  v.  Michael,  4  Sand.  374;  Levering  v.  Levering, 
3  Md.  Ch.  .365;  Shaw  v.  Boyd,  5  S.  &  R.  312;  Wilson  v.  McCullogh,  19 
Pa.  St.  77;  Healy  v.  Rowan,  5  Gratt.  414;  In  re  Waring,  12  Eng.  L. 
&  Eq.  351 ;  Cave  v.  Cave,  15  Beav.  227,  19  Eng.  L.  &  Eq.  280 ;  Field  v. 
Moore,  7  De  G.,  M.  &  G.  691 ;  35  Eng.  L.  &  Eq.  498 ;  Lee  v.  Stuart,  2 
Leigh,  76. 

«  Whichcote  v.  Lyle's  Ex'rs,  28  Pa.  St.  73 ;  Levering  v.  Heighe,  2  M4 
Ch.  81. 

24 


CHAP.    II.]  LUNATICS.  [§  35. 

settled,  however,  after  considerable  conflict,  that  a  female 
infant  ma}'  bar  herself  of  dower  and  of  a  distributive  share 
in  her  husband's  estate,  by  accepting  a  j(jinture  before  mar- 
riage.^ And  she  may,  before  marriage,  make  a  binding 
settlement  of  her  personal  estate,  for  such  a  settlement  will 
ho  for  her  benefit,  otherwise  it  would  vest  in  the  husband, 
and  it  would  in  effect  be  his  settlement  and  not  hers;^  but 
such  settlement  is  not  good  of  chattels  that  would  not  go  to 
the  husband.  It  is  now  settled  in  England  by  statute  that  a 
male  infant  over  twenty  years  of  age  and  a  female  over 
seventeen  may  make  a  valid  marriage  settlement  of  their 
real  and  personal  estates,  under  the  sanction  of  the  Court  of 
Chancery.^ 

§  35.  It  was  a  maxim  of  the  common  law,  that  no  man  of 
full  age  could  be  allowed  to  stultify  himself;  hence  the  acts, 
deeds,  and  feoffments  of  idiots  and  lunatics  were  held  to  be 
binding,  and  not  voidable  by  the  party  himself,  though  they 
could  be  avoided  by  his  heirs,  executors,  or  administrators.* 
This  maxim  never  prevailed  in  the  United  States,  and  is 
not  now  the  law  of  England.  The  conveyance  of  a  lunatic 
is  not,  however,  absolutely  void,  but  only  voidable  by  him- 
self as  well  as  by  his  friends  and  representatives.^  But  after 
inquisition  declaring  him  incompetent,   all  contracts  made 

1  Drury  v.  Driiry,  2  Eden,  39 ;  Buckinghamshire  v.  Drury,  2  Eden,  Gi)- 
75  ;  McCartee  v.  Teller,  2  Paige,  511. 

2  Durnford  v.  Lane,  1  Bro.  Ch.  Ill  ;  Levering  r.  Levering,  3  Md.  Ch. 
365;  Field  v.  Moore,  7  I)e  G.,  M.  &  G.  691;  Ainslie  t-.  Medycott, 
9  Ves.  19;  Stamper  v.  Barker,  5  Mad.  134  ;  Williams  v.  Chitty,  3  Ves. 
551  ;  Johnson  i^.  Smith,  1  Ves.  315;  Simson  i;.  Jones,  2  Russ.  &  My. 
365  ;  Succession  of  Wilder,  22  La.  An.  219. 

»  18  &  19  Vict.  c.  43.     1855.    See  Edwardsw.  Carter,  [1893]  A.  C.  360. 

*  Co.  Litt.  247  b. 

'  Allis  J).  Billings,  6  Met.  415;  Breckenridge  v.  Ormsby,  1  J.J.  ]\Iarsh. 
239;  Price  v.  Barriugton,  3  !Mac.  &  G.  486;  Moulton  r.  Camroux.  2 
Exch.  487;  4  Exch.  17;  Milncr  v.  Turner,  4  Monr.  245;  Ballew  r.  Clark, 
2  Ired.  23  ;  Owing's  Case,  1  Bland.  370;  Elliot  v.  luce,  7  De  G..  M.  & 
G.  488  ;  Campbell  v.  Hooper.  3  Sm.  &  Giff.  153;  Wait  v.  Maxwell,  5 
Pick  217 ;  Mitohell  v.  Kingman,  id.  431  ;  Snowden  v.  Dunlavey,  11  Pena. 
St.  522. 

25 


§    37.]  PARTIES    TO    TRUSTS,    ETC.  [cHAP.    II. 

by  him,  until  restored  to  the  control  of  his  property,  are 
void.  ^  It  follows  that  a  conveyance  by  a  lunatic  upon  a  trust 
will  be  good  until  it  is  avoided,  and  a  court  of  equity  would 
not  set  it  aside,  if  it  was  fair  and  reasonable,^  and  if  the 
parties  could  not  be  restored  to  their  original  condition ;  nor 
would  the  court  interfere  against  bona  fide  purchasers  with- 
out notice  of  the  lunacy.^ 

§  36.  An  alien  may  take  real  estate  by  devise  or  purchase, 
though  he  cannot  take  by  operation  of  law,  as  by  descent,  or 
as  tenant  by  curtesy.  If  an  alien  takes  land  by  purchase, 
he  may  hold  it  until  office  found ;  and  if  he  conveys  it  in 
trust  or  otherwise,  his  grantee  will  hold  it  until  office  found. 
An  alien  can  therefore  create  a  trust  of  real  estate  only  until 
the  State  interposes.  An  alien  may  exercise  all  rights  of 
ownership  over  personal  property,  consequently  he  can  create 
a  valid  trust  in  it.* 

§  37.  By  the  bankrupt  law  of  England  all  the  property 
which  the  bankrupt  is  entitled  to  up  to  the  date  of  the 
certificate  of  his  discharge  vests  in  his  assignees;^  and  he 
can  create  no  trust  in  it,  except  in  the  surplus  that  may 
remain  after  the  payment  of  all  his  debts. ^  Under  the 
bankrupt  laws  of  the  United  States  and  the  insolvent  laws  of 
the  various  States,  only  the  interests  of  the  bankrupt  exist- 
ing at  the  date  of  the  assignments  vest  in  his  assignees ;  ^  he 
may,  therefore,  create  a  valid  trust  in  property  acquired 
after  the  assignment  and  before  the  certificate. 

1  L'-Vmoureux  v.  Crosby,  2  Paige,  422 ;  Pearl  v.  McDowell,  3  J.  J. 
Marsh.  G58. 

2  Niell  V.  Morley,  9  Ves.  478  ;  Story,  Eq.  Jur.  §  228. 

8  Carr  v.  Ilalliday,  1  Dev.  &  Batt.  344  ;  Price  v.  Berrington,  3  Mac.  & 
G.  480  :  Greenslade  v.  Dare,  20  Beav.  285. 

*  2  Kent,  pp.  1-36  ;  Lewin  on  Trusts,  p.  25  ;  Hill  on  Trustees,  p.  47. 

*  12  &  13  Vict.  c.  106,  §§  141,  142. 

*  Lewin  on  Trusts,  p.  26 ;  Hill  on  Trustees,  p.  47. 

'  In  Matter  of  Grant,  2  Story,  312  ;  Mosby  v.  Steele,  7  Ala.  299  ;  Ex 
parte  Newhall,  2  Story,  360. 

26 


CHAP,  n.]  WHO    MAY    BE   TRUSTEE.  [§  38, 


II.     Who  may  be  a  Trustee. 

§  38.  It  is  a  rule  that  admits  of  no  exception,  that  equity 
never  wants  a  trustee,  or,  in  other  words,  that  if  a  trust  is  once 
properly  created,  the  incompetency,  disability,  death,  or  non- 
appointment  of  a  trustee  shall  not  defeat  it.'  Thus,  if  property 
has  been  bequeathed  in  trust,  and  no  trustee,  or  a  trustee  dis- 
abled from  taking,  or  one  who  is  dead,  or  refuses  to  take,  is 
appointed,  the  court  will  decree  the  execution  of  the  trust  by 
the  personal  representatives,  if  it  is  personal  property,  and  by 
the  heirs  or  devisees,  if  it  is  real  estate.^  (a)  Property  once 
charged  with  a  valid  trust  will  be  followed  in  equity  into  whose- 
soever hands  it  comes,  and  he  will  be  charged  with  the  execu- 
tion of  the  trust,  unless  he  is  a  purchaser  for  value,  and 
without  notice.'  The  holder  of  the  legal  title  and  the  absolute 
interest  in  property  may  convert  himself  into  a  trustee  by 

'  Co.  Litt.  290  b,  113  a,  Butler's  note  (1);  Story,  Eq.  Jur.  §§  98,  976; 
McCartee  v.  Orph.  Asy.  Soc,  9  Cow.  437;  Crocheron  v.  Jaques,  3  Edw. 
207;  Bundy  v.  Bundy,  28  N.  Y.  410;  Dodkin  v.  Brunt,  L.  R.  6  Eq.  580. 
{Infra,  §§259,  276  a,  731.] 

2  Piatt  v.  Vattier,  9  Pet.  405;  Gibbs  v.  Marsh,  2  Met.  243;  Withers  v. 
Yeadon,  1  Rich.  Eq.  325;  King  v.  Donnelly,  5  Paige,  46;  Dawson  v.  Daw- 
son, Rice,  Eq.  243;  Cushney  v.  Henry,  4  Paige,  345;  De  Barante  v.  Gott, 
6  Barb.  492;  Malin  v.  Malin,  1  Wend.  625;  Mclntire  v.  Zanesville  C.  & 
M.  Co.,  9  Ham.  203;  Kerr  v.  Day,  14  Pa.  St.  114;  Att.  Gen.  v.  Down- 
ing, Amb.  550;  Bennet  v.  Davis,  2  P.  Wms.  316;  Sonley  v.  Clockmakers' 
Co.,  1  Bro.  Ch.  81;  Treat's  App.,  30  Conn.  43;  White  v.  Hampton,  13 
Iowa,  259. 

3  Ibid.;  Shepherd  v.  McEvers,  4  John.  Ch.  136. 

(a)  It  is  usual  for  the  court  to  even  if  they  have  the  power,  in  exe- 

appoint    a    substituted    trustee    in  cuting  discretionary  duties  of  trus- 

such  cases  on  application  of  one  or  tees,    except    possibly    in    cases    of 

more  of  the  cestuis,  and  the  title  will  emergency  requiring  immediate  ac- 

pass  to  him  on  his  acceptance  and  tion  to  preserve  the  property  from 

qualification.      Pending    such    new  serious    loss.      Infra,    §  259,    note; 

appointment,    the   legal   title,    sub-  §  276  a,  §  284. 

ject  to  the  trust,  is  in  the  heirs  or  The  matter  is  largelj-  regulated 

personal  representatives  of  the  tes-  by  statute,  especially  in  regard  to 

tator,    but   they   are   not   justified,  testamentary  trusts. 


§  39.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP.   II. 

making  a  valid  declaration  of  trust  upon  good  consideration ;  ^ 
or  if  he  conveyed  the  property  by  some  conveyance  which  was 
inoperative  in  law,  equity  would  hold  him  to  be  a  trustee;  *  as 
if  a  man  convey  property  directly  to  his  wife,  a  transaction 
inoperative  in  most  of  the  States,  equity  would  uphold  the  act, 
and  decree  the  husband  to  be  a  trustee.^ 

§  39.  It  may  be  stated,  in  general  terms,  that  whoever  is 
capable  of  taking  the  legal  title  or  beneficial  interest  in  prop- 
erty, may  take  the  same  in  trust  for  others.^  Whatever  persons 
or  corporations  are  capable  of  having  the  legal  title  or  bene- 
ficial interest  cast  upon  them  by  gift,  grant,  bequest,  descent, 
or  operation  of  law,  may  take  the  same  subject  to  a  trust,  and 
they  will  become  trustees.  But  it  does  not  follow  that  who- 
ever is  capable  of  taking  in  trust,  is  capable  of  performing  or 
executing  it.  The  inquiry,  then,  is  not  so  much  who  may  take 
in  trust,  as  it  is  who  may  execute  and  perform  a  trust.  Some- 
times the  law  provides  against  the  appointment  of  non-resi- 
dents as  trustees.^  If  a  trust  is  cast  upon  a  person  incapable 
of  taking  and  executing  it,  courts  of  equity  will  execute  the 
trust  by  decree,  or  they  will  appoint  some  person  capable  of 
performing  the  requirements  of  the  trust.  Mr  Lewin  says 
that  "  in  general  terms,  a  person  to  be  appointed  trustee  should 
be  a  person  capable  of  taking  and  holding  the  legal  estate,  and 

1  See  notes  to  Woollam  v.  Hearne,  2  Lead.  Cas.  Eq.  404;  Mackreth  v. 
Simmons,  1  Lead.  Cas.  Eq.  235;   Adams  v.  Adams,  21  Wall.  186. 

^  McKay  v.  Camngton,  1  McLean,  50;  Kerr  v.  Day,  14  Penn.  St.  114; 
Crawford  v.  Bertholf,  Saxt.  Ch.  458;  Malin  v.  Malin,  1  Wend.  625;  Ty- 
son V.  Passmore,  2  Barr,  122;  Ten  Eick  v.  Simpson,  1  Sand.  Ch.  244; 
Waddington  v.  Banks,  1  Brock.  97;  Atcherley  v.  Vernon,  10  Mod.  518; 
Davie  v.  Beardsham,  1  Ch.  Cas.  39;  Green  v.  Smith,  1  Atk.  572;  Pollex- 
fen  V.  Moore,  3  Atk.  272;  Wall  v.  Bright,  IJ.  &  W.  474. 

'  Huntly  V.  Huntly,  8  Ired.  Eq.  250;  Livingston  v.  Livingston,  2  John. 
Ch.  537;  Gamer  v.  Gamer,  1  Busb.  Eq.  1.  [  Stark  v.  Kirchgraber,  186  Mo. 
633;  Carters.  McNeal,  86  Ark.  1.50;  Bamum  v.  Le  Master,  110  Tenn.  638.] 

*  Fonb.  Eq.  139,  n.;  Hill  on  Trustees,  48;  Commissioners  v.  Walker, 
6  How.  (Miss.)  146. 

5  Rinker  v.  Bissell,  90  Ind.  375;  Meikel  v.  Greene,  94  Ind.  344.     [  But 
see  Roby  v.  Smith,  131  Ind.  342;  Shirk  v.  La  Fayette,  52  Fed.  857.] 
28 


CHAP.  II.]  WHO    MAY    BE    TRUSTEE.  [§  39. 

possessed  of  natural  capacity  and  legal  ability  to  execute  the 
trust  and  domiciled  within  the  jurisdiction  of  the  court."  ' 
Sir  George  J.  Turner,  L.  J.,  laid  down  the  general  rules  which 
govern  courts  in  making  appointments  of  trustees  as  follows:  — 

"  First,  the  court  will  have  regard  to  the  wishes  of  the  persons 
by  whom  the  trust  has  been  created,  if  expressed  in  the  instru- 
ment creating  the  trust  or  clearly  to  be  collected  from  it.  I 
think  this  rule  may  be  safely  laid  down,  because  if  the  author 
of  the  trust  has  in  terms  declared  that  a  particular  person,  or  a 
person  filling  a  particular  character,  should  not  be  trustee  of 
the  instrument,  there  cannot,  as  I  apprehend,  be  the  least 
doubt  that  the  court  would  not  appoint  to  the  office  a  person 
whose  appointment  was  so  prohibited;  and  I  do  not  think  that 
upon  a  question  of  this  description  any  distinction  can  be  drawn 
between  express  declaration  and  demonstrated  intention.  The 
analogy  of  the  course  which  the  court  pursues  in  the  appoint- 
ment of  guardians  affords,  I  think,  some  support  to  this  rule. 
The  court  in  those  cases  attends  to  the  wishes  of  the  parents, 
however  informally  they  may  be  expressed. 

"Another  rule  which  may,  I  think,  safely  be  laid  down,  is 
this,  —  that  the  court  will  not  appoint  a  person  to  be  trustee 
with  a  view  to  the  interest  of  some  of  the  persons  interested 
under  the  trust,  in  opposition  either  to  the  wishes  of  the  tes- 
tator, or  to  the  interests  of  other  of  the  cestuis  que  irvst.  I 
think  so  for  this  reason,  that  it  is  of  the  essence  of  the  duty  of 
every  trustee  to  hold  an  even  hand  between  the  parties  inter- 
ested in  the  trust.  Every  trustee  is  in  duty  bound  to  look  after 
the  interests  of  all,  and  not  of  any  particular  member  or  class 
of  members  of  his  cestuis  que  trust. 

"A  third  rule  which  may  be  safely  laid  down  is  that  the 
court,  in  appointing  a  trustee,  will  have  regard  to  the  question 
whether  his  appointment  will  promote  or  impede  the  execution 
of  the  trust;  for  the  very  purpose  of  the  appointment  is  that 
the  trust  may  be  better  carried  into  execution."  ^ 

^  Lewin  on  Trusts,  27. 

*  In  re  Tempest,  L.  R.  1  Ch.  487.    [See  infra,  §  283  e<  seq.] 

29 


§  40.]  PARTIES    TO    TRUSTS,  P:TC.  [cHAP.  II. 

§  40.  The  sovereign  may  sustain  the  character  of  a  trustee. 
He  has  a  legal  capacity  to  take  and  hold  the  estate,  and  to 
execute  the  trust;  ^  but  there  is  a  difficulty  in  every  country 
in  executing  the  judgments  and  decrees  of  a  court  against  the 
sovereign  power  of  the  country.  In  England,  it  is  said  that 
the  Court  of  Chancery  has  no  jurisdiction  over  the  king's  con- 
science, for  the  Lord  Chancellor  only  exercises  the  equitable 
authority  of  the  king  himself  in  judging  between  his  subjects. 
But  the  greater  difficulty  is  in  enforcing  the  decrees  of  a  court 
against  the  sovereign  power;  for  "the  arms  of  equity  are  very 
short  against  the  prerogative."  ^  The  subject  may  have  a  clear 
right,  but  no  remedy  either  at  law  or  equity  against  the  Crown; 
in  such  case  his  only  resource  is  an  appeal  to  the  king  by  a  peti- 
tion of  right,  and  it  cannot  be  supposed  that  he  would  be  refused. 
The  question  is  now  of  less  importance;  for  by  statute,  if  trust 
property  vests  in  the  Crown  by  escheat,  the  king  is  enabled  to 
grant  it  to  trustees  for  the  purpose  of  executing  the  trust.^ 
And  by  an  amendment  it  is  further  provided  that  property 
held  in  trust  shall  not  escheat  or  be  forfeited  to  the  Crown  by 
the  failure  or  forfeiture  of  the  trustee;^  and  it  is  still  further 
provided  that  in  such  cases  trust  property  shall  be  under  the 
control  of  the  Court  of  Chancery  for  the  use  of  the  parties  bene- 
ficially interested,  and  that  new  trustees  shall  be  appointed.^ 
Under  these  statutes  it  is  said  that  an  equity  will  be  enforced 
against  the  Crown.''  The  only  cases  where  the  question  is  still 
open,  whether  a  trust  can  be  enforced  against  the  Crown,  is 
where  the  person  of  the  sovereign  takes  by  descent  as  heir,  or 

*  Lewin  on  Trusts,  27. 

2  Pawlett  V.  Att.  Gen.,  Hard.  467;  Burgess  v.  Wheate,  1  Eden,  255; 
Kildare  v.  Eustace,  1  Vern.  439;  Wike's  Case,  Lane,  54;  Penn.  v.  Lord 
Baltimore,  1  Ves.  453;  Reeve  v.  Att.  Gen.,  2  Atk.  224;  Hovenden  i'.  Lord 
Annesley,  2  Sch.  &  L.  617;  Hodge  v.  Att.  Gen.,  3  Yo.  &  Col.  342;  Briggs 
V.  Light-boats,  11  Allen  (Mass.),  157,  where  all  the  authorities  are  com- 
mented on. 

'  39  &  40  Geo.  IIL  c.  88. 

♦  4  &  5  Wm.  IV.  23. 

*  13  &  14  Vict.  c.  60,  §§  15,  46,  47. 

•  Hughes  V.  Wells,  9  Hare,  749;  13  Eng.  L.  &  Eq.  389. 

30 


CHAP.   II.]  A    SOVEREIGN    STATE    AS    TRUSTEE.  [§  41. 

by  representation,  or  where  he  may  have  held  as  trustee  pre- 
viously to  his  acquiring  the  crown,  or  where  a  grant  or  bequest 
is  made  to  him  as  a  trustee.^ 

§  41.  The  United  States,  and  each  one  of  the  separate 
States,  may  sustain  the  character  of  trustee.  They  have  legal 
capacities  to  take  and  execute  trusts  for  every  purpose.^  (a) 
But  a  court  cannot  execute  its  judgments  and  decrees  against 
a  sovereign  State  with  any  more  effect  than  the  courts  of  Eng- 
land can  enforce  their  orders  against  the  king.  The  arms  of 
equity  in  America  are  as  short  against  the  sovereign  power  as 
they  are  in  England  against  the  prerogative.  Mr.  Justice 
Gray  has  clearly  shown  that  a  State  cannot  be  sued  in  law  or 
equity  against  its  consent,  or  unless  there  is  some  general  or 
special  statute  authorizing  the  suit.^  A  subject  may  have  a 
clear  right,  but  no  remedy ;  in  such  case  he  must  petition  the 
legislative  power,  and  there  is  no  reason  to  suppose  that  his 
right  would  be  refused.  If  a  State  accepts  a  trust  by  grant  or 
bequest,  it  must  act  through  its  legislative  powers  in  adminis- 
tering the  trust,  or  in  creating  and  appointing  agents  or  offi- 
cers to  perform  the  duties  which  it  assumes;  as  the  United 
States  acted  in  relation  to  the  bequest  of  James  Smithson  in 
trust  for  the  establishment  of  the  Smithsonian  Institution  for 

1  Hill  on  Trustees,  50. 

*  See  Mitford  v.  Reynolds,  1  Phill.  185;  Nightingale  v.  Goulbourn,  2 
Phill.  594;  5  Hare,  484.  It  was  denied,  however,  that  the  United  States 
could  take  in  trust  in  Levy  v.  Levy,  33  N.  Y.  97;  Shoemaker  v.  Comm'rs, 
36  Ind.  176. 

^  Briggs  V.  Light-boats,  11  Allen,  157. 

(a)  A  public  corporation  maj"^  be  tion   of  wharves  or  other  aids   to 

a  trustee.    A  State  is  a  trustee  of  the  commerce.    Shively  v.  Bowlby,  152 

rights  of  its  people  to  dig  shell-fish  U.  S.  1. 

in  navigable  waters.    Allen  v.  Allen,  Public  oflScers,  such  as  State  com- 

19  R.  L  114.    Tide  lands  in  a  Terri-  missioncrs,    authorized    to   superin- 

tory  are  held  in  trust  by  the  gen-  tend  the  building  of  a  Statehouse, 

eral    government    for    the    future  are  not  properly  trustees,  but  State 

State,  but  the  United  States  may  agents.    In  re  Statehouse  ConBtruc- 

grant  them  to  individuals  for  ap-  tion  Loan,  20  R.  L  704. 
propriate  purposes,  such  as  the  erec- 

31 


§  42.]  PARTIES    TO    TRUSTS,   ETC.  [CHAP.   II, 

the  increase  and  diffusion  of  knowledge  among  men.^  A  limi- 
tation over  of  a  charitable  devise  to  the  States  of  Maryland 
and  Louisiana  in  case  of  forfeiture  by  the  first  takers  was  held 
not  to  vitiate  the  bequest.^ 

§  42.  It  was  formerly  laid  down  that  corporations  could 
not  be  seized  of  lands  to  the  use  of  another,  and  could  not  be 
trustees.'  The  reason  assigned  for  this  rule  was  that  no  trust 
or  confidence  could  be  reposed  in  them ;  that  they  could  not  be 
compelled  to  execute  a  use  or  perform  a  trust,  for  courts  of 
equity,  in  decreeing  the  execution  of  a  trust,  lay  hold  upon  the 
conscience;*  and  it  is  impossible  to  attach  any  demand  upon 
the  conscience  of  a  body  so  artificially  created  that  it  cannot 
in  the  nature  of  things  have  a  conscience.  Again,  it  was  said 
that  they  could  not  be  imprisoned  if  they  refuse  to  obey  the 
decrees  of  the  court.  But  the  technical  rules  upon  which  it  was 
held  that  corporations  could  not  be  trustees  have  ceased  to 
operate;  and  at  the  present  day  corporations  of  every  descrip- 
tion may  take  and  hold  estates,  as  trustees,  for  purposes  not 
foreign  to  the  purposes  of  their  own  existence;  and  they  may 
be  compelled  by  courts  of  equity  to  carry  the  trusts  into  exe- 
cution.^   If  they  misapply  the  trust  fund,  or  refuse  to  obey  the 

»  U.  S.  Stat.  1836,  c.  252,  Vol.  V.  p.  64  (L.  &  Bro.  ed.);  also,  Stat. 
1846,  c.  178,  Vol.  IX.  p.  102. 

2  McDonogh's  Ex'rs  v.  Murdoch,  15  How.  367. 

'  Bacon  on  Uses,  57;   1  Cruise,  Dig.  p.  340. 

*  Sugd.  V.  &  P.  p.  417. 

'  Att.  Gen.  i;.  St.  John's  Hosp.,  2  De  G.,  J.  &  Sm.  621;  Att.  Gen.  v. 
Landerfield,  9  Mod.  286;  Dummer  v.  Chippenham,  14  Ves.  252;  Green 
V.  Rutherforth,  1  Ves.  468;  Att.  Gen.  v.  Whorwood,  1  Ves.  536;  Att. 
Gen.  V.  Stafford,  Bam.  33;  Att.  Gen.  v.  Found.  Hosp.  2  Ves.  Jr.  46;  Att. 
Gen.  V.  Clarendon,  17  Ves.  499;  Att.  Gen.  v.  Caius  College,  2  Keen,  165; 
Att.  Gen.  v.  Ironmongers'  Co.,  2  Beav.  313;  Jackson  v.  HartweU,  8  Johns. 
422;  Trustees  Phillips  Academy  v.  King,  12  Mass.  546;  Att.  Gen.  v. 
Utica  Ins.  Co.,  2  Johns.  Ch.  384;  Vidal  i-.  Girard,  2  How.  187;  Miller  v. 
Lerch,  1  Wall.  Jr.  210;  Columbia  Bridge  Co.  v.  Kline,  Bright,  N.  P.  320; 
Greenville  Acad.,  7  Rich.  Eq.  476;  McDonogh  v.  Murdoch,  15  How.  367; 
Green  v.  Dennis,  6  Cow.  304;  Dublin  Case,  38  N.  H.  577.  [Jones  v.  Haber- 
sham, 107  U.  S.  174;  Johnston  v.  Hughes,  187  N.  Y.  446;  Steams  v.  New- 
32 


CUAl'.   11.]  (OKl'i  (RATIONS.  [§  43. 

decrees  of  the  court,  the  proper  remedy  is  by  distringas,  seque.s- 
tration,  or  injunction,  or  by  removal  and  appointment  of  new 
trustees.^ 

§  43.  It  must  be  understood,  however,  that  corporations 
are  the  creatures  of  the  law,  and  that  as  a  general  rule  they 
cannot  exercise  powers  not  given  to  them  by  their  charters  or 
acts  of  incorporation.^  (a)  For  this  reason  they  cannot  act  as 
trustees  in  a  matter  in  which  they  have  no  interest,  or  in  a 
matter  that  is  inconsistent  with,  or  repugnant  to,  the  purposes 
for  which  they  were  created.^  Xor  can  they  act  as  trustees  if 
they  are  forbidden  to  take  and  hold  lands,  as  by  the  statutes 
of  mortmain,  nor  if  they  are  not  empowered  to  take  the  prop- 
erty. But  if  the  trusts  are  within  the  general  scope  of  the 
purposes  of  the  institution  of  the  corporation,  or  if  they  are  col- 
lateral to  its  general  purposes,  but  germane  to  them,  as  if  the 
trusts  relate  to  matters  which  will  promote  and  aid  the  general 
purposes  of  the  corporation,  it  may  take  and  hold,  and  be 
compelled  to  execute  them,"*  if  it  accepts  them.  Thus  towns, 
cities,  and  parishes  may  take  and  hold  property  in  trust  for 
the  establishment  of  colleges,^  for  the  purpose  of  educating  the 
poor,**  for  the  relief  of  the  poor,  though  not  paupers,  by  furnish- 

port  Hospital,  27  R.  I.  309;  School  Trustees  v.  Hoboken,  70  N.  J.  Eq.  630; 
Estate  of  Willey,  128  Cal.  1,  12;   Clayton  v.  Hallctt,  30  Colo.  231.] 

1  Mayor  of  Coventry  v.  Att.  Gen.,  7  Bro.  P.  C.  235;  3  Mad.  Ch.  77,  209. 

2  In  Matter  of  Howe,  1  Paige,  214. 

'  In  Matter  of  Howe,  1  Paige,  214;   Jackson  v.  Hartwell,  8  Johns.  422. 

*  Story,  J.,  Vidal  v.  Girard,  2  How.  188-190;  McDonogh  v.  Murdoch, 
15  How.  367;  First  Cong.  Soc.  of  Southington  v.  Atwater,  23  Conn.  34; 
Wetraore  v.  Parker,  7  Lans.  121.  [Hickory  v.  Railroad,  137  N.  C.  189;  Ayer 
V.  Bangor,  85  Me.  oil.] 

5  Vidal  V.  Girard,  ut  supra.    But  see  Perin  v.  McMicken,  15  La.  An.  1.54. 

°  McDonogh  v.  Murdoch,  ut  supra. 

(a)  If  the  purposes  of  the  trust  the  fact  that  its  charter  gives  it  no 

are  in  accord  with  or  tend  to  pro-  power  to  use  its  own  fund.*'  for  the 

mote   the   purposes  for   which    the  same  purpose.     Stearns  v.  Newport 

corporation   exists,    it  is   not   inca-  Hospital,  27  R.  I.  309. 
pacitated  from  acting  a?  trustee  by 

VOL.  I.  — 3  33 


§43.] 


PARTIES    TO    TRUSTS,  ETC. 


[chap.  II. 


ing  them  fuel  at  a  low  price/  and  for  the  support  of  schools,"  or 
for  any  educational  or  charitable  purposes  within  the  scope  of 
its  charter.^  So  also  overseers  of  the  poor,  supervisors  of  a 
county,"*  commissioners  of  roads  in  South  Carolina,^  trustees  of 
the  poor  in  Mississippi,  and  also  trustees  of  the  school  fund,® 
are  corporations  sub  modo;  and  they  may  take  and  execute 
trusts  within  the  scope  of  their  official  duties  (a). 


1  Webb  V.  Neal,  5  Allen,  575;  Mclntire  Poor  School  v.  Zanesville 
Canal  Co.,  9  Ohio,  217. 

-  First  Parish  in  Sutton  v.  Cole,  3  Pick.  232. 

'  Bamum  v.  Baltimore,  62  Md.  275.  [Handley  v.  Palmer,  91  Fed.  948; 
Higginsoni;.  Turner,  171  Mass.  586;  2  Dillon  Municipal  Corporations  (4tb 
ed.)  §  568.     But  see  Dailey  v.  New  Haven,  60  Conn.  314.] 

*  North  Hempstead  v.  Hempstead,  2  Wend.  109;  Jansen  v.  Ostrander, 
1  Cow.  670. 

*  Com.  Roads  v.  McPherson,  1  Spear,  218. 

*  Governor  v.  Gridley,  Walk.  328;  Carmichael  v.  Trustees,  &c.,  3  How. 
(Miss.)  84. 


(a)  Thus  a  municipal  corpora- 
tion may  be  a  trustee  of  charities  of 
a  public  nature  for  the  benefit  of  its 
own  inhabitants  if  the  public  pur- 
poses are  germane  to  its  own  objects. 
Philadelphia  v.  Fox,  64  Pa.  St.  169, 
181;  Peynado's  Devisees  v.  Pey- 
nado's  Ex'r,  82  Ky.  5.  Thus  a 
municipal  corporation  may  be  a 
trustee  for  the  erection  and  main- 
tenance of  a  hospital,  Mayor  and 
Corporation  of  Philadelphia  v.  El- 
liott, 3  Rawle  (Pa.),  170;  or  of  a 
fund  for  the  benefit  of  the  public 
schools,  Stone  v.  Perkins,  85  Fed. 
616;  or  for  the  support  of  a  pubUc 
library,  Ayer  v.  Bangor,  85  Me. 
511;  or  for  planting  and  maintain- 
ing shade  trees,  Cresson's  Appeal, 
30  Pa.  St.  437;  or  for  maintaining 
United  States  flags  in  public  places, 
Sargent  v.  Cornish,  54  N.  H.  18. 

In  Vidal  v.  Girard,  2  How.  (U.  S.) 
189,  the  general  nrinciple  is  stated 

34 


to  be  that,  "  if  the  purposes  of  the 
trust  be  germane  to  the  objects  of 
the  incorporation,  if  they  relate  to 
matters  which  will  promote,  aid, 
and  perfect  those  objects,  if  they 
tend  (as  the  charter  of  Philadelphia 
expresses  it)  'to  the  suppression  of 
vice  and  immorality,  to  the  ad- 
vancement of  the  public  health  and 
order,  and  to  the  promotion  of  trade, 
industry  and  happiness,'  where  is  the 
law  to  be  found  which  prohibits  the 
corporation  from  taking  the  devise 
upon  such  trusts,  in  a  state  where 
the  statutes  of  mortmain  do  not 
exist,  the  corporation  itself  having 
a  legal  capacity  to  take  the  estate 
as  well  by  devise  as  otherwise?" 

But  it  would  usually  be  ultra 
vires  for  a  municipal  corporation  to 
act  as  trustee  for  specified  individ- 
uals. Franklin's  Estate,  150  Pa. 
St.  437;  Philadelphia  v.  Fox,  64 
Pa.  St.  169,  181. 


CHAP.    II.]  CORPORATIONS.  [§  4'). 

§  44.  A  bank  may  receive  a  deed,  and  hold  land  in  trust 
to  receive  a  debt  due  to  it.'  (a)  One  corporation  may  take 
and  hold  in  trust  for  another,  or  for  a  stranger,^  or  for  an  indi- 
vidual; as  where  one  gave  a  legacy  to  a  church  corporation 
in  trust  to  pay  the  income  to  his  housekeeper  for  life,  and 
after  her  death  to  apply  it  to  church  purposes,  it  was  held 
that  the  corporation  might  well  execute  the  trust,  on  the  prin- 
ciple that  when  property  is  given  to  a  corporation  partly  for 
its  own  use  and  partly  for  the  use  of  another,  the  power  of 
the  corporation  to  take  and  hold  for  its  own  use  carries  with 
it,  as  a  necessary  incident,  the  power  to  execute  that  part  of 
the  trust  which  relates  to  others.^  The  supervisors  of  a  county 
cannot  take  in  trust  for  a  town  or  village  or  for  individuals, 
but  only  for  the  body  which  they  represent.''  Whether  a  par- 
ticular corporation  can  hold  as  trustee  for  any  specific  pur- 
pose must  generally  be  determined  by  the  construction  of  its 
charter  and  of  the  laws  of  the  State  in  which  it  acts.^ 

§  45.  If  a  corporation  takes  land  by  grant  or  bequest  in 
trust  or  otherwise,  which  by  its  charter  it  cannot  hold,  its 
title  is  good  as  against  third  persons  and  strangers;  the  State 
only  can  interfere.**  (b)    A  corporation  cannot  be  compelled  to 

'  Morris  v.  Way,  16  Ohio,  478. 

'  Phillips  Academy  v.  Kling,  12  Mass.  546. 

'  In  Matter  of  Howe,  1  Paige,  214. 

*  Jackson  v.  Hartwell,  8  Johns.  422. 

'  Dartmouth  Coll.  v.  Woodward,  4  Wheat.  636;  Head  v.  Providence 
Ins.  Co.,  2  Cranch,  127;  State  v.  Stebbins,  1  Stew.  299;  Beaty  v.  Knowler, 
4  Pet.  152;  Beaty  v.  Marine  Ins.  Co.,  2  Johns.  109;  People  i;.  Utica  Ins. 
Co.,  15  Johns.  358;  New  York  Fire  Ins.  Co.  v.  Ely,  2  Cow.  678;  State  v. 
Mayor  of  Mobile,  5  Porter.  279. 

•  Runyan  v.  Coster's  Lessee,  14  Pet.  122;  Miller  v.  I^erch,  1  Wall.  Jr. 
210;  Leazure  v.  Hillegas,  7  S.  &  R.  321;  Perin  v.  Car>',  24  How.  465;  Chapin 
V.  School  Dist.,  35  N.  H.  445;  Troy  v.  Haskell,  33  N.  H.  533;  Philadelphia 
V.  Girard,  45  Penn.  St.  9;  Humbert  v.  Trinity  Church,  24  Wend.  587;  Har- 
pending  v.  Dutch  Church,  16  Pet.  492;  Bogardus  v.  Trinity  Church,  4  Sand. 
Ch.  758;  Angell  &  Ames,  Corp.  §§  151-155. 

(a)  As  to  the  relation  of  a  bank  (6)  The  same  has  been  held  true 

to  its  depositors,  see  §  122,  note.  of  a  bequest  to  a  charitable  corpora- 

35 


§  46.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP.    II. 

execute  a  trust  in  property,  the  legal  title  to  which  it  has  no 
power  to  take  and  hold;  ^  but  the  trust,  if  otherwise  valid,  is 
not  for  that  reason  void,  and  the  court  will  appoint  a  compe- 
tent trustee,  and  direct  a  conveyance  of  the  property  to  him; 
as  where  a  testator  gave  land  to  a  corporation  that  could  not 
take  by  reason  of  the  statute  of  mortmain,  in  trust  to  sell  and 
apply  the  proceeds  to  persons  competent  to  take,  it  was  held 
that  though  the  devise  was  void  at  law,  yet  in  equity  it  was  a 
valid  trust,  and  that  the  heir  was  a  trustee  to  the  uses  declared 
in  the  will.^ 

§  46.  Grants  or  gifts  to  an  unincorporated  association  in 
trust  for  a  charitable  purpose  are  sustained  in  equity,  as  a 
legacy  to  the  Seamen's  Aid  Society,  to  go  to  their  treasurer 
for  the  time  being  for  the  purposes  of  such  society;^  a  be- 
quest over  to  several  unincorporated  societies,  some  of  them 
not  in  the  State,  was  held  good,'*  and  if  the  members  are  too 
numerous  to  administer  the  trust,  the  court  will  appoint  a 
trustee.^  So  a  bequest  to  "The  Marine  Bible  Society,"  for 
certain  purposes,  was  held  to  establish  a  charitable  trust,  al- 

1  Sonley  t'.  Clockmaker's  Co.,  1  Bro.  Ch.  81;  Vidal  v.  Girard,  2  How. 
188. 

*  Ibid.;  Winslow  v.  Cummings,  3  Cush.  358.  This  is  denied  to  be  the 
law  in  the  courts  of  New  York,  in  relation  to  charitable  bequests.  See 
Ayres  v.  Methodist  Church,  3  Sand.  351;  Andrew  v.  Bible  Soc,  4  Sand. 
156;  Levy  v.  Levy,  40  Barb.  585;  33  N.  Y.  97.  These  cases  are  governed  by 
a  statute,  as  is  said,  and  would  not  probably  be  followed  outside  of  that 
State;  nor  are  they  fully  concurred  in  by  their  own  courts,  as  there  was  a 
strong  dissent  in  the  Court  of  Appeals,  the  court  of  last  resort. 

'  Tucker  v.  Seamen's  Aid  Soc.  7  Met.  188;  First  Cong.  Soc.  of  South- 
ington  V.  Atwater,  23  Conn.  56. 

*  Burbank  v.  Whitney,  42  Pick.  146;  Washburn  v.  Sewall,  9  Met.  280. 
But  see  Methodist  Church  v.  Remington,  1  Watts,  218. 

5  Burbank  v.  Whitney,  24  Pick.  146;  Washburn  v.  Sewall.  9  Met.  280; 
But  see  Methodist  Church  v.  Remington,  1  Watts,  218.  [Guild  v.  Allen, 
28  R.  I.  430;  Wood  v.  Fourth  Baptist  Church.  26  R.  I.  594;  St.  Peter's 
Church  t;.  Brown,  21  R.  I.  367;  Bruere  v.  Cook,  63  N.  J.  Eq.  624.  See  also 
Estate  of  Winchester,  133  Cal.  271 ;  Keith  v.  Scales,  124  N.  C.  497,  510.) 

tion  the  acceptance  of  which  would     authorized  by  its  charter.    Farring- 
increase  ita  funds  beyond  the  limit     ton  v.  Putnam,  90  Me.  405. 
36 


CHAP.    II.]  UNINCORPORATED    SOCIETIEfl.  [§  47. 

though  the  society  was  a  voluntary  association,  and  had  been 
disbanded,  and  the  court  appointed  a  trustee  to  carry  the 
trust  into  effect.'  In  Pennsylvania,  substantially  the  same 
doctrine  has  been  held.^  A  different  doctrine  was  held  in  the 
Supreme  Court  of  the  United  States; '  but  the  case  was  de- 
cided upon  the  law  of  Virginia,  and  may  be  considered  as 
settling  a  local  rather  than  a  general  question.^  The  later 
cases  in  the  same  court  hold  the  general  rule  to  be  otherwise.^  (a) 

§  47.  A  trust  to  a  board  of  officers  in  their  official  capacity 
for  purposes  within  the  scope  of  their  official  duties  may  be 
executed  by  them.^  Where  a  bequest  was  to  the  chancellor 
of  the  State  of  New  York,  the  mayor  and  recorder  of  the  city 
of  New  York,  and  several  other  persons  by  their  official  de- 
scription only,  and  their  successors  in  office,  to  build  and  main- 
tain a  hospital,  and  if  this  could  not  be  done  legally,  they  were 
to  apply  for  an  act  of  incorporation,  and  at  all  events  the  es- 
tate should  be  held  by  an  heir  charged  with  the  trusts,  it  was 
held  that  the  designation  of  the  trustees  by  their  official  char- 
acter was  equivalent  to  naming  them  by  their  proper  names; 
that  the  trust  was  not  to  be  executed  by  them  in  their  official 
character,  but  in  their  private  and  individual  capacity;  and 
that  if  the  trust  had  been  to  the  officers  named  and  their  suc- 
cessors to  execute,  and  no  other  provisions  had  been  made,  it 
would  have  fallen  within  the  case  of  Baptist  Association  v. 
Hart's  Executors,  and  would  have  been  void.  It  was  further 
held  that  it  was  a  good  executory  devise  to  a  corporation  to 

'  Winslow  t'.  Cummings,  3  Cush.  358. 

^  Pickering  v.  Shotwell,  10  Barr.  27;  and  see  the  able  opinion  of  Bald- 
win, J.,  in  Magill  v.  Brown,  Bright,  N.  P.  350.  See  also  Methodist  Church 
V.  Remington,  1  Watts,  218. 

'  Baptist  Asso.  v.  Hart,  4  Wheat.  1;  Inglis  v.  Sailors'  Snug  Harbor,  3 
Pet.  114. 

♦  Baldwin,  J.,  in  Magill  i-.  Brown,  Bright,  N.  P.  354. 

'  Vidal  V.  Girard,  2  How.  187.     See  chapter  on  Charitable  Trusts,  post. 

"  Ante,  §  43. 

(a)  There  are  several  States  where  definitencss  of  beneficiaries.  See 
'iuch  gift^s  arc  invalid  because  of  in-     infra,  §  729,  note  a. 

37 


§  48.]  PARTIES   TO   TRUSTS,    ETC.  [CHAP,    II. 

be  created  in  fuiuro,  and  in  the  mean  time  that  the  estates  in 
the  hands  of  the  heir  would  be  held  charged  with  the  trusts.^  A 
bequest  to  the  chancellor  of  the  Exchequer  for  the  time  being 
for  the  benefit  of  Great  Britain  was  held  good ;  -  and  the  Gov- 
ernor-General of  India  may  take  in  trust  for  the  benefit  of  the 
city  of  Decca.^  Where  a  British  subject  bequeathed  funds  to 
the  President  and  Vice-President  of  the  United  States  and  the 
Governor  of  Pennsylvania  for  the  time  being,  to  establish  a 
college  in  the  State  of  Pennsylvania,  and  directed  that  moral 
philosophy  should  be  taught,  and  that  a  professor  should  in- 
culcate the  rights  of  the  black  people  of  every  clime,  until  they 
were  restored  to  an  equality  of  rights  throughout  the  Union, 
the  Court  of  Chancery  directed  an  inquiry  to  be  made  whether 
the  President,  Vice-President,  and  Governor  would  accept  the 
trust,  and  it  appearing  that  they  declined  to  act,  it  was  held 
that  the  trust  failed ;  and  as  it  could  not  be  carried  into  effect, 
cy  pres,  in  a  foreign  country,  that  the  gift  fell  into  the  residue."* 
A  bank  comptroller  is  a  trustee  of  the  various  securities  held 
by  him  for  the  several  banks;  but  the  State  itself  is  not  liable 
as  a  trustee  for  his  acts.^ 

§  48.  Married  women  may  become  trustees  by  deed,  gift, 
bequest,  appointment,  or  by  operation  of  law.®  If  an  estate 
comes  to  a  married  woman  in  any  way,  charged  with  a  trust, 
her  coverture  cannot  be  pleaded  in  bar  of  the  trust; '  and  a 
court  of  equity  will  enforce  its  execution;  as  when  the  legal 

*  Inglis  V.  Trustees  of  the  Sailors'  Snug  Harbor,  3  Pet.  99. 
«  Nightingale  v.  Goulboum,  2  Phill.  594;  5  Hare,  484. 

»  Mitford  V.  Reynolds,  1  PhUl.  185. 

*  New  V.  Bonaker,  L.  R.  4  Eq.  655. 
^  State  V.  Bush,  20  Wis.  212. 

'  Lake  v.  De  Lambert,  4  Ves.  595;  Compton  v.  Collinson,  2  Bro.  Ch. 
377;  Hearle  v.  Greenbank,  1  Ves.  305;  Bell  v.  Hyde,  Pr.  Ch.  3.50;  Moore  v. 
Hussey,  Hob.  95;  Needles  v.  Bish.  of  Winchester,  Hob.  225;  Clarke  v.  Saxon, 
1  Hill,  Ch.  69;  Bradish  v.  Gibbs,  3  Johns.  Ch.  523;  Livingston  v.  Living- 
ston, 2  id.  541 ;  Dundas  v.  Biddle,  2  Barr,  160;  Claussen  v.  La  Franz,  1  Clarke 
(la.),  226;  Harden  v.  Darwin  &  Pulley,  66  Ala.  55. 

'  Clarke  v.  Saxon,  1  Hill,  Ch.  69;  Berry  v.  Norris,  1  Duv.  302.  [In- 
surance Co.  V.  Waller,  116  Tenn.  1.] 

38 


CHAP.  II.]  MARRIED   WOMEN.  [§  49. 

title  to  land  in  trust  was  cast  by  descent  upon  a  married  woman, 
and  the  law  required  that  a  deed  executed  by  her  should  be 
acknowledged,  as  executed  voluntarily,  and  she  refused  so  to 
acknowledge  it,  the  court  compelled  her  by  decree.^  But  spe- 
cific performance  will  not  be  enforced  against  a  feme  covert 
trustee  for  sale  upon  her  contract  as  trustee  to  convey.'  There 
is  no  less  judgment  and  discretion  in  a  woman  after  marriage 
than  before.  Sir  John  Trevor  thought  she  rather  improved 
by  her  husband's  teaching.^  The  reasons  for  her  disabilities 
are  founded  upon  her  own  interests,  or  her  husband's,  or  both;  ^ 
or  rather  upon  the  broader  policy  of  the  law  which,  for  the 
purpose  of  domestic  peace  and  happiness,  merges  the  propri- 
etary interests  of  the  wife  during  coverture  in  her  husband, 
and  will  not  permit  her  to  hold  interests  separate  from,  and 
independent  of,  and  possibly  antagonistic  to  him.  The  policy 
of  the  law  has,  however,  been  very  much  modified  by  legisla- 
tion in  later  years.  But  where  such  interests  are  not  con- 
cerned, she  possesses  the  same  legal  capacity  as  if  she  were 
sui  juris.  Thus,  she  may  execute  any  kind  of  power,  whether 
simply  collateral,  appendant,  or  in  gross;  and  it  is  immaterial 
whether  it  is  given  to  her  while  sole  or  married.^ 

§  49.  In  equity,  the  absolute  interest  in  the  trust  fund  is 
vested  in  the  cestui  que  trust,  the  trustee  is  a  mere  instrument, 
and  any  power  or  authority  in  the  trustee  must  have  the  char- 
acter of  a  power  simply  collateral ;  ^  therefore  there  is  nothing, 

1  Dundas  v.  Biddle,  2  Barr,  160. 

""  Berry  v.  Norris,  1  Duv.  302;  Avery  v.  Griffin,  L.  R.  6  Eq.  606.  (But 
Bee  Insurance  Co.  v.  Waller,  116  Tenn.  1.] 

3  Bell  V.  Hyde,  Pr.  Ch.  350. 

*  Compton  V.  Collinson,  2  Bro.  Ch.  377. 

''  Co.  Litt.  112  a,  187  b;  Lord  Antrim  v.  Buckingham,  2  Freeman,  168; 
Blithe's  Case,  id.  91 ;  Godolphin  v.  Godolphin,  1  Ves.  23;  Sugden  on  Powers, 
144-155;  4  Kent,  324;  Thompson  v.  Murray,  2  Hill,  Ch.  214;  Bradish  v. 
Gibbs,  3  Johns.  Ch.  523.  (Married  Women's  Property  Act,  1907,  7  Edw. 
VII,  c.  18;  Armstrong  v.  Kerns,  61  Md.  364;  Antonini  v.  Straub,  130  Ky. 
10;  Young  v.  Sheldon,  139  Ala.  444.1 

'  Smith  V.  Smith,  21  Beav.  385;  Drummond  v.  Tracy,  1  Johns.  608; 
Kingham  v.  Lee,  15  Sim.  401;  People  v.  Webster,  10  Wend.  554. 

39 


§  50.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP. 


II. 


as  respects  legal  capacity,  to  prevent  a  married  woman  from 
administering  a  discretionary  trust.^  But  she  cannot  create 
a  trust  in  her  absolute  property  except  by  joining  her  husband 
in  conveying  it,  or  in  executing  a  declaration  of  trust.^ 

§  50.  At  the  same  time  a  husband  must  always  have  a 
large  influence  over  a.  feme  covert  trustee;  indeed,  as  he  would 
be  answerable  for  her  acts,  and  liable  for  her  breaches  of  trust, 
he  must,  for  his  own  protection,  look  to  the  manner  in  which 
she  administers  the  fund;  and  she  must  join  her  husband  in 
suits  in  relation  to  the  trust  property.^  (a)  Again,  if  land  is 
conveyed  to  a  married  woman  upon  a  declared  trust  without 
powers  of  sale,  and  it  becomes  necessary  to  sell  and  convey 
the  land,  is  the  husband  to  join  or  not  in  the  conveyance;  and 
to  whom  is  the  purchase-money  to  be  paid,  and  upon  whose 
receipt?  *  Mr.  Lewin  thinks  that  the  joint  receipt  of  the  hus- 
band and  wife  should  be  taken;  but  that  the  safest  way  would 
be  to  pay  the  money  into  some  bank  upon  their  joint  receipt, 
to  remain  until  wanted  for  the  purposes  of  the  trust,  and  that 
if  the  husband  took  it  out  for  any  other  purpose,  he  would  be 
liable  as  for  a  breach  of  trust.^  Another  inconvenience  arises 
in  probate  and  other  trusts,  where  the  trustee  may  be  required 
to  give  bonds  for  the  faithful  administration  of  the  trust.  A 
court  of  equity  may  require  the  trustee  to  give  security  for 
the  property,  even  though  the  trust  arises  by  operation  of  law.« 

'  Ibid.  2  Graham  t;.  Long,  65  Penn.  St.  383. 

»  Still  V.  Ruby,  35  Penn.  St.  373. 

*  See  Daniel  v.  Uhley,  Wm.  Jones,  137;  Co.  Litt.  112  a,  Hargrave's 
note  (6);  1  Fonb.  Eq.  92;  McNeille  v.  Acton,  2  Eq.  R.  25. 

*  Lewin  on  Trusts,  24,  25;  Drummond  v.  Tracy,  1  Johns.  611;  4  Cruise, 
Dig.  143;  Co.  Litt.  112  a,  Hargrave's  note  (6). 

"  Clarke  v.  Saxon,  1  Hill,  Ch.  69. 

(a)  This  is  no  longer  true  in  Eng-  larging  the  property  rights  of  mar- 
land.  Married  Women's  Property  ried  women  have  done  away  with 
Act  of  1882,  §  18  (45  &  46  Vict.  c.  this  objection  and  other  objections 
75);    Lewin  (11th  ed.),  33.  to  her  acting  as  trustee.     See  stat- 

And  in  general,  the  statutes  en-  utes  of  the  different  States. 
40 


CHAP.  II.]  MARRIED    WOMEN.  [§  51. 

A  married  woman  can  enter  into  contracts  only  in  relation  to 
her  sole  and  separate  estate;  and  how  far  she  can  bind  herself, 
or  her  estate,  by  a  bond  to  execute  a  trust  in  property,  the 
beneficial  interests  in  which  belong  to  another,  would  always 
be  a  perplexing  question,  although  the  sureties  in  such  a  bond 
might  be  liable. 

§  51.  Subject  to  these  inconveniences,  a  married  woman 
can  always  be  a  trustee;  and  she  may  even  be  a  trustee  for  her 
husband,*  as  well  as  her  husband  for  her,^  and  courts  will  find 
means  to  enforce  the  trusts;  but  they  will  not  appoint  married 
women  to  such  offices,  nor  will  they  appoint  them  to  be  guar- 
dians of  minors;^  (a)  a  woman,  on  the  contrary,  will  be  re- 
moved from  the  office  if  she  is  appointed  while  sole  and 
afterwards  marries.'*  For  the  same  reason  it  is  undesirable  to 
appoint  afevie  sole  trustee;  for  should  she  marry,  her  husband, 
being  liable  for  her  breaches  of  trust,  ought  to  have  control  of 
her  acts,  and  the  character  of  the  trust  is  changed.  On  these 
grounds  the  courts  at  one  time  refused  to  appoint  a  feme  sole 
trustee;*  but  it  is  a  matter  of  sound  discretion  in  the  court, 
and  in  a  more  recent  case  a  feme  sole  was  appointed.* 

'  Livingston  v.  Livingston,  2  Johns.  Ch.  54L  [Insurance  Co.  v.  Waller, 
116  Tenn.  ].] 

2  Bennet  i-.  Davis,  2  P.  Wms.  316;  Shirley  v.  Shirley,  9  Paige,  363;  Jam- 
ison V.  Brady,  6  S.  &  R.  467;  Boykin  v.  Ciples,  2  Hill  Ch.  200;  Picquet  v. 
Swan,  4  Mason,  455;  Griffith  v.  Griffitli,  5  B.  Monr.  113. 

'  Re  Kaye,  L.  R.  1  Ch.  387.  In  Massachusetts,  by  statute,  a  married 
woman  may  be  executrix,  administratrix,  guardian,  or  trustee,  and  may 
bind  herself  and  the  estate,  without  her  husband  joining,  with  the  same 
effect  as  if  she  were  sole;  and  a  woman  may  continue  to  hold  the  trust  to 
which  she  has  been  appointed,  notwithstanding  her  subsequent  marriage. 

*  Lake  v.  De  Lambert,  4  Ves.  595.  The  trustee  in  this  case  had  married 
a  foreigner,  but  Lord  Chancellor  Loughborough  simply  remarked  "that 
it  was  very  inconvenient  for  a  married  woman  to  be  trustee." 

*  Brooks  );.  Brooks,  1  Beav.  531. 

'  Re  Campbell's  Trusts,  31  Beav.  176. 

(a)  In  most  if  not  all  jurisdic-  trusts  as  are  other  persons  who  are 

lions  the  removal  of  the  disabilities  sui  j'wrrs.     See  Schluter  v.  Bowery 

of  married  women  has  made  them  Sav.  Bank,  117  N.  Y.  125. 
as    competent    legally    to    execute 

41 


§  52.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP.    II. 

§  52.  Infants  labor  under  still  greater  disabilities  than 
married  women,  for  a  married  woman  has  judgment,  discre- 
tion, and  capacity,  though  she  cannot  in  all  cases  freely  exer- 
cise them;  but  an  infant  wants  judgment  and  capacity.^  From 
this  want  of  judgment  and  capacity  an  infant  can  do  nothing 
that  requires  the  exercise  of  discretion.  It  is  true  that  his  acts 
are  voidable  only  and  not  void;  ^  but  every  act,  not  simply 
ministerial,  is  at  least  voidable;  but  where  he  signs  an  acquit- 
tance without  receipt  of  the  money,  it  is  an  exercise  of  discre- 
tion, and  is  actually  void.^  An  infant  is  capable  of  executing 
a  naked  power  unaccompanied  with  any  interest,  or  not  re- 
quiring any  discretion.^  If  a  power  is  given  to  an  infant  re- 
lating to  his  own  estate,  it  must  be  inserted  in  the  deed  that  he 
may  execute  it  during  his  infancy,  or  his  execution  of  it  will 
have  no  effect.^  As  was  shown  before,  trustees  generally  exer- 
cise powers  over  the  trust  fund  simply  collateral ; «  but  if  the 
exercise  of  these  powers  requires  the  application  of  any  pru- 
dence or  discretion,  an  infant  is  incapable  of  executing  them.^  (a) 

»  Hearle  v.  Greenbank,  3  Atk.  712;  1  Ves.  305;  Grange  v.  Tiving,  Bridg. 
O.  108;  Compton  v.  Collinson,  2  Bro.  Ch.  377;  Socket!  v.  Wray,  4  Bro.  Ch. 
486.  See  Co.  Litt.  3  b,  128  a,  88  b,  172  a,  264  b,  Hargrave's  note  (4);  1 
Watk.  on  Copyh.  24;  Eddleston  v.  Collins,  3  De  G.,  M.  &  G.  1;  ToUer's 
Ex'rs,  31;  Halliburton  v.  Leslie,  2  Hog.  252. 

2  Ante,  §  33;  Lewin  on  Trusts,  32. 

'  Russell's  Case,  5  Rep.  27  a;  Co.  Litt.  172  a,  264  b;  1  Roll.  Ab.  730, 
F.  2;  Cropster  v.  Griffith,  2  Bland,  5. 

*  4  Kent,  324. 

^  Coventry  v.  Coventry,  2  P.  Wms.  229;  1  Sug.  on  Powers,  213-220 
(6th  ed.). 

"  Ante,  §  14. 

'  Kmg  V.  Bellord,  1  Hem.  &  M.  343;  Hearle  v.  Greenbank,  3  Atk.  695; 
1  Ves.  298;  Grange  v.  Tiving,  Bridg.  O.  109. 

(a)  In  In  re  D'Angibau,  15  Ch.  which  will  be  affected  or  disposed 
Div.  228,  it  was  held  after  a  careful  of  by  this  exercise  of  the  power, 
examination  of  the  authorities  that  To  the  rule  that  equity  would  not 
an  infant  may  exercise  a  power  of  make  a  decree  divesting  an  infant 
appointment,  since  in  so  doing  he  of  the  title  to  his  lands  without  re- 
acts as  an  agent,  unless  he  has  an  in-  serving  to  him  a  day  in  court  to 
terest  of  his  own  in  the  property  show  cause  why  the  decree  should 

42 


CHAP.  II.]  INFANTS.  [§  54. 

§  53.  From  these  inconveniences  and  incapacities  attend- 
ing the  administration  of  a  trust  by  an  infant,  he  never  w  ould 
be  appointed  by  a  court  to  such  an  office.  He  could  not  give 
a  vaHd  security  or  bond  for  the  safety  of  the  trust  fund,  nor 
could  a  court  decree  him  to  make  satisfaction  for  a  breach  of 
the  trust.'  But  an  infant  has  no  privilege  to  cheat,-  and  he  will 
not  be  protected  in  cunning  and  contrived  frauds.^  (a) 

§  54.  But  an  infant  may  still  be  a  trustee;  he  may  be  actu- 
ally named  as  trustee  in  any  instrument,  and  the  estate  will 
pass  to  him;  and  if  such  an  appointment  is  made,  he  cannot 
set  up  any  claim  to  the  beneficial  interest  in  the  estate ;  *  but  a 
court  of  equity  would  direct  the  execution  of  the  trust  by  him- 
self or  guardian,^  or  would  remove  him  and  appoint  some  one 
competent  to  act.    So  an  estate  charged  with  a  trust  may  be 

1  Whitmore  v.  Weld,  1  Vem.  328;  Russell's  Case,  5  Rep.  27  a;  Hind- 
marsh  V.  Southgate,  3  Russ.  324. 

2  Evroy  v.  Nicholas,  2  Eq.  Cas.  Ab.  489. 

'  Cory  V.  Gertcken,  2  Mad.  40;  Buckingham  v.  Dniry,  2  Eden,  71,  72; 
Clare  y.  Bedford,  13  Vin.  536;  Watts  v.  Cresswell,  9  Vin.  415;  Beckett  v. 
Cordley,  1  Bro.  Ch.  358;  Savage  v.  Foster,  9  Mod.  37;  Overton  v.  Banis- 
ter, 3  Hare,  503;  Stikeman  v.  Dawson,  1  De  G.  &  Sm.  503;  Wright  v.  Snowe, 

2  De  G.  &  Sm.  321;  Davis  v.  Hodgson,  25  Beav.  177;  Hillyer  v.  Bennett, 

3  Edw.  Ch.  544;  Hill  v.  Anderson,  5  S.  &  M.  216. 

*  King  V.  Denison,  I  Ves.  &  B.  275;  Jevon  v.  Bush,  1  Vem.  343;  Lake 
9.  De  Lambert,  4  Ves.  596,  n. 

'  Ex  parte  Sergison,  2  Ves.  149,  and  n.;  In  Matter  of  Fallen,  1  Mc- 
Carter,  147. 

be  set  aside   (Mellor  v.  Porter,  25  But  the   contrary   view   has   been 

Ch.  Div.  158;    Gray  v.  Bell,  46  L.  taken  in  Maine.    Perry  v.  Perry,  65 

T.  521.       See  Younge  v.  Cocker,  32  Me.  399. 

W.    R.    359),    there     has     always  It  has  also  been  held  in  Maine 

been  an  exception  when  he  holds  that  a  "day  in  court"  must  be  re- 

the     title    as     trustee    for    others,  served  to  an  infant  trustee  if  he  has 

Walsh    V.   Walsh,  116    Mass.    377;  a  beneficial  interest  in  the  property. 

McCleUan  «.  McClellan,  65  Me.  500.  McClellan    i;.    McClellan,    65    Me. 

This  exception  has  been  held  un-  500. 

der   the   Massachusetts   statute   to  (a)  And  he  has   no  privilege  to 

apply  even  when  the  infant  holds  deny  the  trust  or  to  refuse  to  exe- 

the    title    upon    a    resulting    trust,  cute  it.    Levin  v.  Ritz,  41  N.  Y.  S. 

Walsh   V.   Walsh,    116   Mass.   377.  405. 

43 


§  55.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP.    II. 

cast  upon  an  infant  by  descent,  or  by  operation  of  law;  as 
where  a  father  bought  and  paid  for  land,  but  took  the  con- 
veyance in  the  name  of  a  son  five  years  old,  the  court  held 
that  the  land  in  the  hands  of  the  son  was  charged  with  a  re- 
sulting trust  for  the  father.^  In  another  case,  where  the  father 
had  purchased  land  in  the  name  of  an  infant  son,  it  was  pre- 
sumed to  have  been  an  advancement,  rather  than  to  make  the 
infant  a  trustee.^  From  the  great  inconvenience  attending  the 
appointment  of  an  infant  as  trustee,  a  strong  presumption 
arises  that  property  conveyed  to  an  infant  is  intended  for  his 
benefit,  as  an  advancement  or  otherwise,  and  the  court  will 
not  infer  an  intention  that  he  is  to  take  it  in  trust,  unless  it 
distinctly  appears.^ 

§  55.  Aliens  can  take  and  hold  real  estate  by  grant  in  trust 
to  the  same  extent  as  they  can  take  and  hold  the  legal  title;  ■* 
that  is,  until  office  found;  though  it  is  said  that  thej^  cannot 
take  by  act  of  law  as  by  descent.^  There  is  a  conflict  of  de- 
cisions, whether  they  can  take  by  devise  or  not.^  But  an  alien 
cannot  plead  his  alienage  to  defeat  any  trust  that  may  be 
charged  upon  the  lands  that  come  to  him,  nor  in  bar  of  any 

»  Binion  v.  Stone,  2  Freem.  169.  See  Bowra  v.  Wright,  4  De  G.  &  Sm. 
265. 

2  Lamplugh  v.  Lamplugh,  1  P.Wms.  112;  Matter  of  Rindle,  2  Edw.  585. 

*  Ibid.;  Blinkhome  v.  Feast,  2  Ves.  30;  Mumma  v.  Mumma,  2  Vem.  19; 
Taylor  v.  Taylor,  1  Atk.  386;  Smith  v.  King,  16  East,  283.  See  also  Grey 
V.  Grey,  Finch,  338;  1  Ch.  Gas.  296;  Elliott  v.  Elliott,  2  id.  231;  Ebrand  v. 
Dancer,  id.  26;  Scroope  v.  Scroope,  1  Ch.  Gas.  27;  Stileman  v.  Ashdown, 
2  Atk.  480;  Pole  v.  Pole,  1  Ves.  76. 

*  Ante,  §  36;  Marshall  v.  Lovelass,  Gam.  &  Nor.  217. 

'  Orr  V.  Hodgson,  4  Wheat.  453;  Wright  v.  Trust  Meth.  Ep.  Ghurch, 
1  Hoff.  Gh.  202;  Buchanan  i;.  Deshon,  1  Har.  &  G.  280;  Ex  parte  Dupont, 
1  Harp.  Gh.  5;  Trembles  v.  Harrison,  1  B.  Monr.  140;  Montgomery  v. 
Dorion,  7  N.  H.  475;  Foss  v.  Grisp,  20  Pick.  121;  Smith  v.  Zaner,  4  Ala.  99. 

*  In  Graig  v.  Radford.  3  Wheat.  594;  Atkins  v.  Kron,  2  Ired.  Gh.  58, 
it  was  held  that  a  devise  to  an  alien  would  not  vest  the  title  in  him;  but 
in  Vauxf.  Nesbitt,  1  McGord,  Gh.  352;  Glifton  v.  Haig,  4  Des.  330;  Stephen 
V.  Swann,  9  Leigh,  404,  it  was  held  that  a  devise  would  vest  the  title  in 
him  subject  to  escheat  on  office  found. 

44 


CHAP.  II. J  ALIENS    A8   TRUSTEES;    LUNATICS.  (§  50. 

contract  made  by  him  in  relation  to  the  purchase  of  lands.'  If 
lands  in  the  hands  of  an  alien  charged  with  a  trust  escheat  to 
the  State,  the  State  as  a  general  rule  takes  only  the  title  that 
the  alien  had;  and  there  are  statutes  in  many  States  that  pro- 
vide for  carrying  the  trust  into  execution.  It  has  been  held 
that  an  alien  may  be  a  corporator  and  trustee  for  a  corpora- 
tion; ^  and  that  if  an  alien  trustee  sold  and  conveyed  the  trust 
estate,  equity  would  not  set  the  sale  aside.^  As  to  personal 
property  aliens  have  the  same  rights  and  privileges  as  citizens, 
and  they  can  execute  trusts  of  personal  chattels  to  the  same 
extent  as  citizens.  An  alien  may  take  a  mortgage  of  land  as 
security  for  debt,  and  he  may  have  a  decree  of  foreclosure  or 
sale  of  the  land  for  the  payment  of  the  debt."*  But  if  the  alien 
is  domiciled  abroad,  it  is  an  objection  to  his  fitness  for  the 
office,  as  he  is  not  within  the  jurisdiction  of  the  court.^  (a) 

§  56.  Lunatics  can  take  a  legal  title  by  descent  or  by  de- 
vise, and  they  can  take  bj'  purchase  or  grant,  although  they 
have  not  mind  enough  to  accept  the  conveyance.  A  valid  ac- 
ceptance will  be  presumed  after  long  acquiescence  by  all  par- 
ties, or  if  the  cestui  que  trust  accept  the  deed,  it  will  be  sufficient." 
But  lunatics  cannot  execute  a  trust  that  requires  judgment  and 
discretion,  as  they  are  incapable  of  gi\'ing  a  valid  assent  that 

1  Dunlop  V.  Hepburn,  1  Wheat.  179;  3  id.  231;  Scott  v.  Thorpe,  1  Edw. 
Ch.  512;  Waugh  v.  Riley,  8  Met.  290. 

2  Commeyer  v.  United  German  Churches,  2  Sand.  Ch.  186. 

3  Ferguson  v.  Franklin,  6  Munf.  305;  Escheator  i-.  Smith,  4  McCord,  452. 
*  Hughes  V.  Edwards,  9  Wheat.  489. 

5  Meinertzhager  v.  Davis,  1  Coll.  C.  C.  335;  In  re  Tempest,  L.  R.  1 
Ch.  485. 

"  Eyrick  v.  Eetrick,  13  Penn.  St.  494;  Re  Bloomar,  2  De  G.  &  Jon. 
88. 

(a)  In  Indiana,  a  State  statute  cords  to  the  citizens  of  each  State  all 

providing    that    a    trustee    under  a  the  privileges  and  immunities  of  the 

written  instrument  shall  be  a  bona  citizens  in  the  several  States.    Roby 

fide  resident  of  the  State,  has  been  v.  Smith,  131  Ind.  342;  Shirk  v.  La 

held  invalid   under  that   clause  of  Fayette,  52  F.  R.  857.     See  1  Ames* 

the  Federal  Constitution  which  ac-  on  Trusts  (2d  ed.),  250. 

45 


§  58.]  PARTIES    TO    TRUSTS,    ETC.  [cHAP.    II. 

"will  bind  themselves,  the  estate,  or  the  cestui  que  trust. ^  When- 
ever a  trust  estate  is  vested  in  a  lunatic,  it  must  be  admin- 
istered by  his  guardian,  or  by  the  court,  or  he  will  be  removed 
and  a  competent  person  appointed. (a)  An  habitual  or  com- 
mon drunkard  may  be  a  trustee,  but  he  may  be  removed.^ 

§  57.  A  religious  person,  who  by  vows  has  renounced  the 
world,  as  a  nun  or  monk,  may  be  a  trustee  or  guardian.  It  is  a 
matter  for  their  own  consciences,  whether  they  will  take  such  an 
office,  and  courts  cannot  regard  their  religious  associations.' 

§  58.  A  bankrupt  or  insolvent  is  competent  to  take,  hold, 
and  execute  a  trust.  The  trust  estate  does  not  pass  to  his 
assignees,  nor  does  his  certificate  discharge  him  from  any  fi- 
duciary debts  or  obligations.  (6)     As  he  holds  only  for  the 

*  Loomis  V.  Spencer,  2  Paige,  153;  Swartwout  v.  Burr,  1  Barb.  495; 
Person  v.  Warren,  14  Barb.  488. 
2  Webb  V.  Dietrich,  7  W.  &  S.  401. 
«  Smith  V.  Young,  5  Gill,  197.     See  also  Rine  v.  Wagner,  135  Iowa,  626. 

(a)  In  England  under  the  Trustee  substituted  trustee.  See  infra. 
Act  of  1852  the  chancery  court  has  §  275.  The  lunacy  of  a  trustee,  how- 
power  to  vest  the  title  of  an  insane  ever,doe8  not  ipso/octo  terminate  his 
trustee  in  a  substituted  trustee  if  trusteeship  and  legal  title,  even  when 
the  lunacy  of  the  former  has  there  are  competent  co-trustees, 
been  found  by  the  proper  tribunal.  Bascom  v.  Weed,  105  N.  Y.  S.  459. 
Plomley  v.  Richardson,  [1894]  A.  C.  (6)  A  person  who  receives  per- 
632  ;  In  re  Leon,  [1892]  1  Ch.  sonal  property  in  trust,  is  bound  to 
348;  In  re  Batho,  39  Ch.  Div.  189.  repay  the  proceeds  thereof,  if  sold. 
And  under  the  Trustee  Act  of  even  after  he  has  been  discharged 
1893  the  court  of  chancery  may  re-  in  insolvency.  Raphael  v.  Mullen, 
move  from  office  a  trustee  when  it  171  Mass.  111. 

is  satisfied   of  his   unsoundness   of  Under   the   Bankruptcy   Act   of 

mind,  but  cannot  make  a  vesting  1867,  a  debt  was  not  created  by  a 

order  until  a  formal  adjudication  of  person  while  acting  in  a  "  fiduciary 

lunacy  has  been  obtained.     In  re  character,"  merely  because  it  was 

M.  [1899]  1  Ch.  79.  created     under     circumstances     in 

In  the  United  States  the  power  which  trust  or  confidence  was  re- 

to  remove  and  appoint  usually  car-  posed  in  the  debtor,  in  the  popular 

ries  with  it  the  power  to  vest  the  sense   of   these   terms.     Upshur   v. 

title  of  the  removed  trustee  in  the  Briscoe,  138  U.  S.  365,  375.    As  to 

46 


CHAP.  II.]  WHO    MAY    BE    CESTUI    QUE    TRUST.  [§  00. 

cestui  que  trust,  he  cannot  charge  or  incumber  the  estate  other- 
wise than  for  the  beneficiary.^  A  witness  to  a  will  who  is  in- 
capable of  taking  a  legacy  to  himself  may  yet  take  a  legacy  in 
trust  in  which  he  has  no  interest.^ 

§  59.  Cestuis  que  trust  are  not  incapable  of  taking  in  trust 
for  themselves  and  others  (a),  but  they  are  not  altogether  fit 
persons  to  be  appointed,  by  reason  of  a  possible  conflict  between 
their  duty  and  interest.  Near  relatives  and  connections,  like  hus- 
band and  wife,  are  also  objectionable  as  trustees,  as  by  reason 
of  affection  and  influence  frequent  breaches  of  trust  may  hap- 
pen, and  other  irregular  proceedings  are  always  to  be  feared; 
but  there  is  no  absolute  rule  of  law  that  forbids  such  appoint- 
ments, and  they  are  sometimes  inevitable  ^  or  necessary. 


III.     Who  may  he  Cestuis  que  trust. 

§  60.  As  a  general  rule,  equity  follows  the  law,  and  all 
persons  who  are  capable  of  taking  the  legal  title  to  property 

1  Scott  V.  Surnam,  Willes,  402;  Carpenter  v.  Mamell,  3  B.  &.  P.  41 ;  Glad- 
stone V.  Hadwen,  1  M.  &.  S.  526;  Ex  -parte  Glanys,  1  Mont.  &  Mac.  258; 
Ex  parte  Painter,  2  Deac.  &  Ch.  584;  Butler  v.  Merchants  Ins.  Co.,  14 
Ala.  798;  Shryock  v.  Waggoner,  28  Penn.  St.  431 ;  Harris  v.  Harris,  29  Beav. 
107;  Copeman  v.  Gallant,  1  P.  Wms.  314;  Gardner  v.  Rowe,  2  Sim.  &  St. 
346;  Lounsbury  v.  Purdy,  11  Barb.  490;  Ludwig  v.  Highley,  5  Barr,  132; 
Welhelm  v.  Palmer,  6  Barr,  296;  Kep  v.  Bank  of  N.  Y.,  10  Johns.  63;  Bliss 
V.  Pierce,  20  Vt.  25;  Ontario  Bank  v.  Mumford,  2  Barb.  Ch.  596. 

"  Hogan  V.  Wyman,  2  Oregon,  302. 

'  Wilding  V.  Bolder,  21  Beav.  222;  Ex  parte  Glutton,  17  Jur.  988.  See 
also  In  re  Tempest,  L.  R.  1  Ch.  485.  (Stearns  v.  Fraleigh,  39  Fla.  603. 
See  Parker's  Ex'rs  v.  Moore,  25  N.  J.  Eq.  228.] 

bankruptcy  as  a  cause  for  removal  1;  Rogers  v.  Rogers,  111  N.  Y.  228; 

from  the  office  of  trustee  see  infra,  Robertson     v.    De    Brulatour,    188 

§  279,  note.  N.  Y.  301 ;  Doscher  v.  WyckofT,  113 

(a)  Burbach    v.     Burbach,     217  N.  Y.  S.  655.     See,  cotitra,  Craig  t-. 

111.  547;   Nellis  v.  Rickard,  133  Cal.  Hone,  2  Edw.  Ch.  (N.  Y.),  554,  564. 

617;    People  v.  Donohuc,  70  Hun,  See   the  subject  of   merger,    infra, 

317;   Story  v.  Palmer,  46  N.  J.  Eq.  §  347. 

47 


§  63.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP.    II. 

may  take  the  equitable  title  as  cestuis  que  trust,  through  the 
medium  of  a  trustee,^  (a) 

§  61.  A  trust  may  be  declared  in  favor  of  the  Crown.  By 
the  old  law  the  king  could  take  the  use  of  real  estate  only  by 
matter  found  of  record;^  but  Mr.  Hill  says  that  it  has  never 
been  decided  that  a  court  of  chancery  would  refuse  to  execute 
a  trust  in  land  in  favor  of  the  Crown,  if  found  otherwise  than 
by  matter  of  record.^  The  king  can  take  personal  property  as 
cestui  que  trust,  in  the  same  manner  as  a  private  person."* 

§  62.  The  State  may  be  a  cestui  que  trust,  and  when  there 
are  no  statutes  to  forbid  it,  property  may  be  given  to  trustees 
for  the  use  of  the  State  or  the  United  States  in  the  same  man- 
ner as  for  the  use  of  individuals.  A  deed  to  a  trustee  and  his 
heirs  in  trust  for  the  State  of  South  Carolina  was  held  to  vest, 
by  the  statute  of  uses,  the  whole  legal  title  in  the  State.'  And 
a  deed  to  trustees  in  trust  to  sell  and  apply  the  proceeds  to  pay 
a  debt  due  to  the  United  States  from  the  grantor  is  valid,  not- 
withstanding the  statute  which  forbids  the  purchase  of  any 
land  on  account  of  the  United  States,  unless  authorized  by  act 
of  Congress." 

§  63.  If  there  are  statutes,  like  the  statutes  of  mortmain, 
which  prevent  corporations  from  taking  the  legal  title  to  lands, 

1  Sand  on  Uses,  370;  Lewin  on  Trusts,  35;  Hill  on  Trustees,  52;  Trotter 
V.  Blocker,  Porter,  269. 

2  Bacon  on  Uses,  60;  Gilbert  on  Uses,  44,  204. 

3  Hill  on  Trustees,  52;  Rogers  v.  Rogers,  18  Hun  (N.  Y.),  409;  Moke 
V.  Norrie,  21  id.  128. 

*  Middleton  v.  Spicer,  1  Bro.  Ch.  201 ;  Brummel  v.  McPherson,  5  Ruse. 
264;  Nightingale  v.  Goulbourne,  5  Hare,  484;  2  Phill.  594;  Mitford  v.  Rey- 
nolds, 1  Phill,  185;  Ashton  v.  Langdale,  4  Eng.  L.  &  Eq.  80. 

^  Lamar  v.  Simpson,  1  Rich.  Ch.  71. 

'  Neilson  v.  Lagow,  12  How.  107;  3  Stat,  at  Large,  568,  May  1,  1820. 

(a)  A  tribal  Indian,  who  cannot  rick,  145  U.  S.  317.    A  tribe  of  In- 

8ue  in  the  Federal  courts,  but  can  dians  may  be  cestuis.     Ruddick  v. 

sue  in  the  courts  of  the  State,  may  Albertson,   154  Cal.  640. 
be  a  cestui  que  trust.     Felix  i;.  Pat^ 

48 


CHAP.    II.]  ALIENS,    ETC.  [§  04. 

they  cannot  evade  the  statutes  by  taking  the  legal  title  to 
trustees  and  the  beneficial  interest  to  themselves;  thus  they 
cannot  be  cestuis  que  trust  in  lands  the  legal  title  to  which  they 
are  not  licensed  or  enabled  to  take.'  They  can  be  the  cestuis 
que  trust  of  personal  property,  to  the  same  extent  as  individ- 
uals.- So  voluntary  associations  ma\'  be  cestuis  que  trust  of 
personal  property,  and  if  such  associations  have  an  authorized 
agent,  treasurer,  or  secretary,  the  trustees  may  act  under  his 
directions  in  performing  the  trust.^  (a) 

§  64.  If  an  alien  is  made  the  cestui  que  trust  of  land  he  may 
enjoy  it  as  against  all  but  the  State;  but  the  State  can  at  any 
time  claim  the  equitable  interest.*  This  rule  applies  where  a 
mere  naked  trust  is  created  in  a  trustee  for  the  benefit  of  an 
alien.  But  if  the  trustee  is  to  do  anything  with  the  land,  that 
is,  if  the  trust  is  executory,  the  court  will  do  nothing  to  trans- 
fer the  right  of  the  alien  to  the  State.  As  where  a  testator 
directed  lands  to  be  sold  and  the  proceeds  divided  among  cer- 
tain persons,  some  of  whom  were  aliens,  the  court  considered 
that  as  done  at  the  time  of  the  death  which  was  ordered  to  be 
done,  and  that  it  was  a  devise  of  mere  personalty,  and  it  re- 
fused to  allow  the  Crown  to  elect  to  keep  the  funds  in  land  in 
order  to  work  a  forfeiture.^    So  where  an  agent  to  collect  a 

'  Hill  on  Trustees,  52;  Lewin  on  Trusts,  36. 

*  Ibid. 

»  Sangston  v.  Gordon,  22  Gratt.  755.  [White  v.  Rice,  112  Mich.  403, 
409;  In  re  Clarke,  (1901)  2  Ch.  110.] 

*  Dumoncel  v.  Dumoncel,  13  Ir.  Eq.  92;  Vin.  Ab.  Alien,  A.  8;  God- 
frey V.  Dixon,  Godb.  275;  Barrow  v.  Wadkin,  24  Beav.  1;  King  v.  Hol- 
land, Al.  16;  Styl.  21;  Burney  v.  MacDonald,  15  Sim.  6;  Rittson  v.  Stordy, 
3  Sm.  &  Gif.  230;  Att.-Gen.  v.  Sands,  Hard.  495;  Fourdrin  v.  Gowdy,  3 
M.  &  K.  383;  Burgess  v.  Wheate,  1  Eden,  18S;  Du  Houmiolin  i-.  Sheldon, 
1  Beav.  79;  4  My.  &  Or.  525;  Master  i'.  De  Croismar,  11  Beav.  184. 

*  Burney  v  MacDonald,  15  Sim.  14;  Rittson  v.  Stordy,  3  Sm.  &  Gif. 
240;  Du  Hourmelin  v.  Sheldon,  1  Beav.  79;  4  My.  &  Cr.  525.  And  see 
Master  v.  De  Croismar,  11  Beav.  184;  Barrow  v.  Wadkin,  24  Beav.  1; 

(a)  As  to  gifts  for  the  benefit  of  unincorporated  charitable  asdociations, 
see  infra,  §  730,  note. 

VOL.  I.  —  4  49 


§  65.]  PARTIES    TO    TRUSTS,    ETC.  [CHAP.    II. 

debt  for  an  alien  took  a  deed  of  real  estate  in  trust  to  sell  and 
pay  the  proceeds  to  the  alien  creditor,  the  heirs  of  the  agent 
were  ordered,  having  sold  the  land,  to  pay  the  proceeds  to  the 
principal.'  But  where  an  alien  paid  the  money  for  lands,  and 
took  the  deed  in  the  name  of  a  citizen  as  trustee,  the  trustee 
was  adjudged  to  hold  the  land  in  trust  for  the  commonwealth.^ 
Equity  will  not  raise  a  resulting  trust  in  favor  of  an  alien.^  (a) 
Nor  will  it  allow  a  legacy  given  to  an  alien  to  be  charged  upon 
real  estate,^  nor  lands  liable  to  escheat  to  be  sold  for  the  pay- 
ment of  debts  in  order  that  aliens  may  take  their  legacies  out 
of  the  personalty.^  Aliens  may  be  the  cestuis  que  trust  of  per- 
sonal property  without  objection ;  ^  and  trustees  for  aliens, 
and  alien  cestuis  que  trust  may  maintain  actions  in  our  courts 
to  maintain  their  rights  in  the  trust  property.' 

§  65.  There  is  another  class  of  cases  that  illustrates  the 
principle  that  the  beneficial  donee  of  property  cannot  take  as 
cestuis  que  trust,  if  he  is  prohibited  from  taking  the  legal  title 
to  that  property;   as  where  a  slave  is  prohibited  from  holding 

Craig  V.  Leslie,  3  Wheat.  563;  Austin  v.  Brown,  6  Paige,  448;  Neilson  v. 
Lagow,  12  How.  107;  Com'th  v.  Martin,  5  Munf.  117;  Meakings  v.  Crom- 
well, 1  Selden,  136. 

»  Austin  V.  Brown,  6  Paige,  448;  McCaw  v.  Galbrath,  7  Rich.  Law,  74. 

2  Hubbard  v.  Goodwin,  3  Leigh,  492. 

'  Leggett  V.  Dubois,  5  Paige,  Ch.  114;  PhiUips  v.  Crammond,  2  Wash. 
C.  C.  441.  See  Taylor  v.  Benham,  5  How.  270,  and  Farley  v.  Shippen, 
Wythe,  254. 

*  Atkins  V.  Kron,  2  Ired.  Eq.  423. 

*  Trezavant  v.  Howard,  5  Des.  87. 

*  Bradwell  v.  Weeks,  1  Johns.  Ch.  206. 

^  Hamersley  v.  Lambert,  2  Johns.  Ch.  508. 

(a)  The  two  cases  cited  in  sup-  of  defeating  this  pohcy.    Since  the 

port  of  this  proposition  are  in  juris-  general  change  in  the  poUcy  of  the 

dictions  where  at  the  time  it  was  law  in  regard  to  ownership  of  real 

against  the  policy  of  the  law  to  per-  estate  by  ahens,  there  seems  no  good 

mit  aliens  to  own  real  estate,  and  the  reason  why  trusts  may  not  result  in 

decisions  were  based  upon  the  prin-  their    favor    as   in    favor   of   other 

ciple  that  equity  would  not  imply  persons. 
a  tnist  which  would  have  the  effect 

50 


ilLW.    11.]  ALIENS,    ETC.  [§  66. 

property,  he  cannot  be  made  a  cedui  que  truai  of  property.'  In 
Virginia,  a  free  negro  was  prohibited  from  holding  slaves,  and 
it  was  held  that  he  could  not  be  a  cestui  que  trust  of  slaves.^ 
So  where  emancipation  was  forbidden,  a  slave  could  not  be  the 
cestui  que  trust  of  his  own  freedom.^  But  in  Mississippi  it  was 
held  that  land  purchased  with  money  furnished  by  a  slave  with 
the  acquiescence  of  her  master,  and  the  title  taken  in  the  name 
of  a  freeman,  was  held  in  trust  for  the  slave  after  her  actual 
emancipation  by  living  in  Ohio,  and  that  the  trust  could  be 
enforced  against  all  persons  who  took  the  land  with  notice  of 
the  facts."*  So  where  an  individual  took  stock  in  trust  for  a 
corporation  that  had  no  right  to  hold  shares  in  another  corpor- 
ation, it  was  held  that  such  shares  did  not  go  to  the  assignees 
upon  the  bankruptcy  of  the  individual,  but  that  they  must  be 
disposed  of  as  the  corporation,  as  cestui  que  trust,  should  direct.^ 

§  66.  But  in  charitable  trusts  the  cestuis  que  trust  are  not, 
and  need  not  be,  capable  of  taking  the  legal  title,  as  when  prop- 
erty is  given  in  trust  for  the  poor  of  a  parish,  or  for  the  educa- 
tion of  youth,  or  for  pious  uses,  or  for  any  charitable  purpose, 
the  beneficiaries  are  generally  unknown,  uncertain,  changing, 
and  incapable  of  taking  or  dealing  with  the  legal  title;  but  such 
trusts  are  valid  in  equity,  and  courts  of  equity  will  administer 
them  and  protect  the  rights  of  the  cestuis  qu£  tnist.^  And  in 
trusts  not  charitable  it  is  not  always  necessary  that  the  cestui 
que  trust  should  be  in  existence  at  the  time  of  the  creation  of 
the  trust;  as  a  devise  to  a  father  in  trust  for  accumulation  for 
his  children  lawfully  begotten  at  the  time  of  his  death  was  held 
to  be  good,  although  the  father  had  no  children  at  the  time  of 

»  Skrine  v.  Walker,  3  Rich.  Eq.  262;  Pool  v.  Harrison,  18  Ala.  514. 
Il  Ames,  Cases  on  Trusts  (2d.  ed.)  214.) 

*  Dunlap  V.  Harrison,  14  Gratt.  251. 

'  Trotter  v.  Blocker,  Porter,  269;  Graves  v.  Allen,  13  B.  Monr.  190. 

*  Leiper  v.  Hoffman,  26  Miss.  615;  and  see  Frazier  v.  Frazier,  2  Hill,  Ch. 
305;  Ross  v.  Duncan,  Freem.  Ch.  603;  Osterman  v.  Baldwin,  6  Wall.  116. 

*  Great  Eastern  Ry.  Co.  v.  Turner,  L.  R.  8  Ch.  149;  Ex  parte  Watkins, 
2  Mont.  &  A.  348. 

*  Post,  chapter  on  Charitable  Trusts. 

51 


§  CO.]  I'ARTIES    TO    TRUSTS,    ETC.  [CHAP.    II, 

the  vesting  of  the  funds  in  him  as  trustee.^  So  an  illegitimate 
child  born,  or  in  ventre  sa  mere,  may  be  a  cestui  que  trust  (a) ;  ^ 
but  a  trust  for  illegitimate  children  to  be  thereafter  begotten 
will  not  be  enforced,  as  being  against  good  morals.^  Nor  will 
a  court  of  equity  establish  or  execute  a  trust  that  is  founded 
upon  a  consideration  that  is  fraudulent,  or  malum  in  se,  or 
malum,  prohibitum,  or  immoral,  or  corrupt,  or  contrary  to  pub- 
lic policy.^  But  a  trust  not  charitable  created  in  yroesenti  for 
cestuis  que  trust  does  not  take  effect  until  the  cestuis  que  trust 
are  identified;  as  where  land  was  conveyed  under  articles  of 
agreement  in  trust  for  the  subscribers  thereto,  the  title  of  the 
grantor  was  not  divested  until  there  were  subscribers.^  In 
some  cases  a  person  is  capable  of  taking  an  equitable  interest, 
in  a  manner  in  which  the  legal  interest  could  not  be  limited. 
Thus  at  law  no  property  can  be  so  limited  to  a  married  woman 

1  Ashurst  V.  Given,  5  Watts  &  S.  329;  Carson  v.  Carson,  1  Wins.  (N.  C.) 
24. 

2  Gabb  V.  Prendergast,  3  Eq.  R.  648;  Pratt  v.  Flamer,  7  Har.  &  J.  10; 
Gardner  v.  Heyer,  2  Paige,  11;  Collins  v.  Hoxie,  9  Paige,  81;  In  re  Con- 
nor, 2  Jones  &  Lat.  456;  Evans  i;.  Davies,  7  Hare,  498;  Owen  v  Br3'ant, 
21  L.  J.  Ch.  860.  [Cooper  v.  Heatherton,  73  N.  Y.  S.  14,  65  App.  Div. 
561.] 

'  Medworth  v.  Pope,  27  Beav.  21;  Wilkinson  v.  Wilkinson,  1  Younge 
&  C.  Ch.  657;  Pratt  v.  Mathew,  22  Beav.  528;  Howarth  v.  Mills,  L.  R.  2 
Eq.  389.     [Thompson  v.  Thomas,  27  L.  R.  Ir.  4o7.] 

*  Ownes  V.  Ownes,  23  N.  J.  Eq.  60;  Battinger  v.  Budenbecker,  63  Barb. 
404;  69  Barb.  395. 

'  Urkett  V.  Coryell,  5  W.  &  S.  61. 

(a)  As  the  law  fixes  no  limit  to  Children  bom  after  their  parents' 

the  age  of  child-bearing,  a  trust  for  marriage  are  presumed  legitimate, 

a  woman's  "children  now  living,  or  but  the  presumption  of  legitimacy 

that  may  hereafter  be  born,"  con-  is  now  held  rebuttable.     See  Orth- 

tinues    through    the    woman's  Hfe.  wein  v.  Thomas,  127  111.  554;   Shu- 

Bcarden  v.  White  (Tenn.  Ch.  1897),  man  v.   Shuman,   83   Wis.   250;    2 

42  S.  W.  476.     See  In  re  Hockmg,  Kent  Com.  (14th  ed.),  209  n. 
[1898]  2  Ch.  567;    In  re  Ricards'  A    deed    of    the    father    for    his 

Trust  Estate,  97  Md.  608;  White  v.  illegitimate    child's    benefit    has    a 

Allen,  76  Conn.  185;  hi  re  Dawson,  good      consideration.      Conley      v. 

39  Ch.  Div.  155.      But  see  1  Ames  Nailor,  118  U.  S.   127. 
on  Trusts  (2d  ed.),  455,  n. 

52 


CH.\P.    II.]  CHOSES    IN    ACTION.  [§  68. 

as  to  exclude  the  legal  rights  of  the  husband;  but,  by  way 
of  trust,  property  can  be  so  given  to  her  use  as  to  place  it 
entirely  beyond  the  right  of  enjoyment  by  the  husband.^  A 
trust  for  the  heirs  of  A.  is  valid  as  a  trust  for  the  children 
of  A.2 


IV.     What  Property  may  be  the  Subject  of  a  Trust. 

§  67.  Every  kind  of  valuable  property,  both  real  and  per- 
sonal, that  can  be  assigned  at  law  may  be  the  subject-matter 
of  a  trust.  Every  kind  of  vested  right  which  the  law  recog- 
nizes as  valuable  may  be  transferred  in  trust,  as  a  receipt  for 
a  medicine,^  the  copjTight  of  a  book,^  a  patent  right,^  (a)  a  trade 
secret,^  or  growing  crops.^ 

§  68.  At  common  law  no  possibility,  right,  title,  nor  chose 
in  action  could  be  granted  or  assigned  to  strangers.^  But  in 
equity  the  rule  is  different,  and  choses  in  action,^  expectancies,^" 
contingent    interests,^^    and    even  possibilities  ^^  may  be    as- 

1  Lewin  on  Trusts,  37. 

»  Flint  1-.  Steadman,  36  Vt.  210. 

3  Green  v.  Folgham,  1  Sim.  &  St.  398. 

*  Sims  V.  Marryal,  17  Q.  B.  281. 

6  Russell's  Patent,  2  De  G.  &  Jon.  130. 
"  Morrison  v.  Moat,  6  Eng.  L.  &  Eq.  14;  9  Hare,  241. 
^  Robinson  v.  Maulden,  11  Ala.  908;  Grantham  v.  Hawley,  Hob.  132; 
Fetch  V.  Tutin,  15  M.  &  W.  110;  McCarty  v.  Blevina,  5  Yerg.  195. 

»  Lampet's  Case,  10  Coke,  48;  Thallhimer  f.  Brinckerhoff,  3  Cow.  623. 

•  Row  V.  Dawson,  1  Ves.  322;  Ryall  t-.  Rolles,  1  Ves.  348;  Townsend 
V.  Windham,  2  Ves.  6;  Ex  parte  Alderson,  1  Mad.  53;  Burn  v.  Carvalho, 
4  My.  &  Cr.  690;  Yeates  v.  Grover,  1  Ves.  Jr.  280;  Ex  parte  South,  3  Swans. 
393;  Morton  v.  Naylor,  1  Hill,  583;  Clemson  v.  Davidson,  5  Binn.  392. 

10  Fitzpjcrald  v.  Vestal,  4  Sneed,  258;  Hobson  v.  Trevor,  2  P.  Wms.  191; 
Beckley  v.  Newland,  id.  182;  Wetherhed  v.  Wetherhed,  2  Sim.  183;  Doug- 
lass V.  Russell,  4  Sim.  184;  Langton  v.  Horton,  1  Hare,  549. 

"  Ibid.;  Varish  v.  Edwards,  1  Hoff.  Ch.  382. 

«  Ibid. 

(a)  See  1  Ames  on  Trust  (2d  Shipping  Acts  now  distinguish  be- 
ed.),  194.  In  England,  there  could  tween  legal  and  beneficial  interests 
be  no  implied  trust  in  a  registered  therein.  See  Chasteauneuf  v.  Cap- 
British    ship;     but    the    Merchant  eyron,  7  A.  C.  127. 

53 


§  69.  J  PROPERTY    OP    A    TRUST.  [CHAP.    II. 

signed,  and  a  valid  trust  created  in  them.  Equitable  rever- 
sionary interests  stand  upon  the  same  ground.^  Property  not 
owned  by  the  assignor  at  the  time,  and  not  even  in  esse,  may 
be  assigned  in  equity;  ^  and  a  valid  trust  may  be  created  in  a 
naked  power  or  authority.^ 

§  69.  But  there  are  some  choses  in  action,  rights,  claims, 
and  interests  that  cannot  be  assigned  in  equity;  either  because 
some  statute  prohibits,  or  because  it  is  against  public  policy 
to  allow  assignments  of  them  to  strangers.  Thus  an  officer  in 
the  army  cannot  assign  or  pledge  his  commission,'^  nor  his  full 
or  half  pay.^  A  judge  cannot  assign  his  salary;  ^  nor  can  a 
pension  given  for  the  honorable  support  of  the  dignity  of  a 
title  be  assigned.^  The  principle  seems  to  be  that  when  a 
salary,  annuity,  or  pension  is  given  by  the  State  for  the  support 
of  its  own  dignity  and  the  administration  of  its  affairs,  it  is  not 
becoming  that  its  officers  should  deprive  themselves  of  the 

'  Voyle  V.  Hughes,  2  Sm.  &  Gif.  18;  Kekewich  v.  Manning,  1  De  G.,  M. 
&  G.  187;  and  cases  supra. 

*  Pennock  v.  Coe,  23  How.  117;  Mitchell  v.  Winslow,  2  Story,  630;  6  Law 
Rep.  347;  Holroyd  v.  MarshaU,  2  Gif.  382;  2  De  G.,  F.  &  J.  596;  9  Jur. 
N.  8.  213;  33  L.  J.  Ch.  193;  Hope  v.  Hayley,  5  El.  &  Bl.  845;  Calkins  v.  Lock- 
wood,  17  Conn.  154;  Langton  v.  Horton,  1  Hare,  549;  Brooks  v.  Hatch,  6 
Leigh,  534;  Leslie  v.  Guthrie,  1  Bing.  N.  C.  697;  Field  v.  Mayor  of  N.  Y., 
2  Selden,  179;  Robinson  v.  Macdonald,  5  M.  &  S.  228;  In  re  Ship  Warre, 
8  Price,  269;  Stewart  v.  Kirkland,  19  Ala.  162;  Hinkle  v.  Wanzer,  17  How. 
353;  McWiUiams  v.  Nisby,  2  S.  &  R.  509;  Wilson's  Estate,  2  Barr,  325. 

'  Brown  v.  Higgs,  8  Ves.  570. 

*  ColUer  V.  Fallon,  1  Turn.  &  Rus.  459;  and  see  L'Estrange  v.  L'Estrange, 

1  Eng.  L.  &  Eq.  153. 

^  Stone  V.  Lidderdale,  2  Anst.  533;  Priddy  v.  Rose,  3  Mer.  102;  Tun- 
stall  V.  Boothby,  10  Sim.  540;  Flarty  v.  Odium,  3  Tr.  681;  Lidderdale  v. 
Montrose,  4  T.  R.  248. 

*  Arbuthnot  v.  Norton,  5  Moore,  P.  C.  C.  219;  Cooper  v.  Reilley,  2  Sim. 
560;  Palmer  v.  Bate,  6  Moore,  28;  2  Brod.  &  Bmg.  673;  Hill  v.  Paul,  8  CI. 
&  Fin.  295.  But  in  State  Bank  v.  Hastings,  15  Wis.  75,  it  was  held  that 
a  judge  could  assign  his  salary. 

^  Davis  V.  Marlborough,  1  Swanst.  79;  McCarthy  v.  Gould,  1  Ball  & 
Beatt.  387;  Price  v.  Lovett,  4  Eng.  L.  &  Eq.  110;  Grenfell  v.  Dean,  &c., 

2  Beav.  550.  See  also  Wells  v.  Foster,  8  M.  &  W.  149;  Spooner  v.  Payne, 
10  Eng.  L.  &  Eq.  207. 

54 


CHAP.    II.]    PEItSONALTY    IN    A    FOREIGN    JURISDICTION.  [§  70. 

means  of  support  which  it  gives  to  them;  but  a  pension  or  an- 
nuity for  past  services  may  be  assigned.'  The  mere  right  to 
file  a  bill  in  equity  for  a  fraud  committed  upon  the  assignor, 
or  to  sue  for  a  tort,  cannot  be  assigned  and  a  trust  created  in 
such  rights.^  A  mere  naked  expectancy  arising  from  a  peculiar 
position,  such  a  position  as  that  a  person  expects  to  make  a 
favorable  bargain  and  purchase  (and  he  employs  an  agent  to 
negotiate  the  purchase,  and  such  agent  purchases  for  another), 
is  not  such  property  that  a  trust  can  be  created  in  it.^ 

§  70.  The  question  has  been  frequently  mooted  in  courts, 
how  far  a  trust  could  be  engrafted  and  enforced  upon  foreign 
property,  or  property  beyond  the  limits  of  the  jurisdiction  of 
the  court  where  the  suit  is  pending.  In  regard  to  personal 
property  there  is  no  difficulty,  for  it  follows  the  person;  and  if 
the  court  has  jurisdiction  over  the  parties,  it  has  jurisdiction 
over  the  subject-matter,  and  can  enforce  a  trust  or  any  other 
equity.'*  If  the  personal  property  is,  however,  in  fact  beyond 
the  jurisdiction  of  the  court,  there  may  arise  some  practical 
obstructions  to  the  execution  of  the  decrees  of  the  court.^ 
Where  the  trust  is  created  by  a  judicial  decree  in  another  State, 
as  by  probate  of  a  will  in  New  York  State,  the  trustee  is  account- 
able in  the  courts  of  that  State;  and  where  the  will  has  not  been 
proved  or  recorded  in  the  State  of  the  former,  nor  any  letters 
testamentary  or  of  administration  or  trusteeship  have  been 

*  Alexander  v.  Wellington,  2  Russ.  &  My.  35;  Tunstall  v.  Boothby, 
10  Sim.  452;  Feistal  f.  King's  College,  10  Beav.  491;  and  see  Berkley  r. 
King's  College,  10  Beav.  499,  and  Butcher  v.  Muagrove,  2  Beav.  550; 
Stevens  v.  Bagwell,  15  Ves.  139. 

^  Prosser  v.  Edmonds,  1  Yo.  &  Col.  481;  Gardner  v.  Adams,  12  Wend. 
297;  Dunklin  v.  Wilkins,  5  Ala.  199;  McKee  v.  Judd,  2  Ker.  622.  It  is 
not  intended  to  enter  into  all  the  niceties  of  the  law  of  assignmcnlfl.  An 
exhaustive  statement  of  the  law  and  a  collection  of  all  the  cases  will  be 
found  in  Story's  Eq.  Jur.  §§  1040-1055,  and  3  Lead.  Caa.  in  Eq.  pp.  279- 
380  (3d  Am.  ed.). 

'  Garrow  v.  Davis,  15  How.  277. 

*  Hill  V.  Reardon,  2  Russ.  608;  Hill  on  Trustees,  44;  Lewin  on  Trusts, 
39;  Chase  v.  Chase,  2  Allen,  101;  Maaon  v.  Chambers,  4  J.  J.  Marsh,  401. 

6  Booth  V.  Clark,  17  How.  327. 

55 


§  71.]  PROPERTY    OF    A    TRUST.  [CHAi'.    11. 

issued  there,  the  trustee  cannot  be  compelled  to  execute  the 
trust,  though  residing  in  the  State  of  the  former;  such  is  the 
settled  law  of  Massachusetts.^  (a)  Such  a  case  differs  entirely 
from  one  in  which  the  trust  is  created  by  instrument  inter 
partes  without  judicial  decree.- 

§  71.  As  to  lands  lying  in  a  foreign  jurisdiction,  the  court 
will  enforce  natural  equities  and  compel  the  specific  perform- 
ance of  contracts,  if  the  parties  are  within  its  jurisdiction. 
Thus  Lord  Eldon  allowed  a  lien  to  a  consignor  for  advances 
upon  estates  in  the  West  Indies;^  and  a  specific  performance 
of  articles  between  parties  for  the  settlement  of  their  bound- 
aries was  enforced ;  ^  effect  was  given  to  an  equitable  mortgage 
by  deposit  of  the  title-deeds  to  land  in  Scotland,  though  by  the 
law  of  Scotland  such  deposit  created  no  lien ;  ^  an  account  was 
ordered  of  the  rents  and  profits  of  lands  abroad ;  ^  and  an  ab- 
solute sale  ^  or  a  foreclosure  of  a  mortgage  ^  decreed ;  a  fraudu- 
lent conveyance  was  relieved  against,^  and  injunction  granted 

^  Jenkins  v.  Lester,  131  Mass.  357,  and  cases  there  cited.  [See  also 
Chase  i;.  Chase,  2  Allen,  101;  Jones  v.  Downs,  72  A.  589,  (Conn.  1909); 
Marsh  v.  Marsh's  Ex'rs,  73  N.  J.  Eq.  99;  Schwartz  v.  Gerhardt,  44  Or.  425.1 

2  Massie  v.  Watts,  6  Cranch,  148,  160.  [Johns  v.  Herbert,  2  App.  D. 
C.  485.     See  also  Peynado's  Devises  v.  Peynado's  Ex'r,  82  Ky.  5.] 

5  Scott  V.  Nesbitt,  14  Ves.  438. 

*  Penn  v.  Lord  Baltimore,  1  Ves.  444  and  Belt's  Sup.;  Roberdeau  v. 
Rous,  1  Atk.  543,  West,  23;  TuUock  v.  Hartley,  1  Yo.  &  Col.  114;  Cood 
V.  Cood,  33  Beav.  314;  PortarUngton  v.  Soulby,  3  My.  &  K.  104;  Athol 
V.  Derby,  1  Ch.  Cas.  221. 

^  Ex  parte  Pollard,  3  Mont.  &  Ayr.  340;  Mont.  &  Chit.  239;  Norris  v. 
Chambers,  29  Beav.  246;  Martin  v.  Martin,  2  R.  &  M.  507. 

*  Roberdeau  v.  Rous,  1  Atk.  543. 
^  Ibid. 

8  Toller  V.  Carteret,  2  Vern.  494. 

'  Arglasse  v.  Muschamp,  1  Vern.  75;  Archer  v.  Preston,  1  Vern.  77; 
1  Eq.  Abr.  133. 

(a)  But  the  trustee's  legal  owner-  v.  Woodward,  105  Ky.  790;  Toronto 

ship  of  trust  property  will  be  recog-  Gen.  Tr.  Co.  v.  C.  B.  &  Q.  R.  Co., 

nized  without  any  new  appointment.  123  N.  Y.  37;  Bradford  v.  King,  18 

Iowa  &  Cal.  Land  Co.  v.  Hoag,  132  R.  I.  743;   Pennington  v.  Smith,  69 

Cal.  627;   Peach  Orchard  Coal  Co.  Fed.  188. 
56 


CHAP,    ll.j  LAND    IN    A    FOREIGN    JURISDICTION.  [§  71. 

against  taking  possession.'  Cliief-Justice  Marshall  said: 
"  Upon  the  authority  of  these  cases  and  others  which  are  to  be 
found  in  the  books,  as  well  as  upon  general  principles,  this 
court  is  of  opinion  that  in  case  of  fraud,  of  trust,  or  of  contract, 
the  jurisdiction  of  a  Court  of  Chancery  is  sustainable  wherever 
the  person  be  found,  although  lands  not  within  the  jurisdiction 
of  that  court  may  be  affected  by  the  decree."  ^  But  if  the  per- 
son is  not  within  the  jurisdiction  of  the  court,  and  the  land  is, 
the  court  cannot  decree  a  specific  performance  of  an  agreement 
for  a  sale.^  If  a  trust  is  created  by  the  will  of  a  citizen  of  a 
particular  State,  and  his  will  is  allowed  by  the  Probate  Court 
of  that  State,  and  a  trustee  is  appointed  by  the  Probate  Court, 
courts  of  equity  will  have  jurisdiction  over  the  trust,  although 
both  the  trustee  and  the  property  are  beyond  the  jurisdiction 
of  the  court.  Chief-Justice  Bigelow,  in  determining  this  point, 
said:  "The  residence  of  the  trustee  and  cestui  que  trust  out  of 
the  commonwealth  does  not  take  away  the  power  of  this 
court  to  regulate  and  control  the  proper  administration  of 
trust  estates  which  are  created  b}^  wills  of  citizens  of  this  State, 
and  which  have  been  proved  and  established  by  the  courts  of 
this  commonwealth.  The  legal  existence  of  the  trust  takes 
effect  and  validity  from  the  proof  of  the  will,  and  the  right  of 
the  trustee  to  receive  the  trust  fund  is  derived  from  the  decree 
of  the  Probate  Court.  If  the  trustee  is  unfaithful  or  abuses  his 
trust,  that  court  has  jurisdiction  to  remove  him  in  concurrence 
with  this  court  on  the  application  of  those  beneficially  inter- 

'  Cranstown  v.  Johnston,  5  Ves.  278;  Bunbury  v.  Bunbury,  1  Beav.  31S; 
Hope  V.  Carnegie,  L.  R.  1  Ch.  320. 

2  Massie  v.  Watts,  6  Cranch,  160;  Farley  v.  Shippen,  Wythe,  135;  Kil- 
dare  v.  Eustace,  1  Vern.  419;  Ward  v.  Arredondo,  Hopk.  213;  Delvlyn  v. 
Watkins,  3  Sand.  Ch.  185;  Guerrant  v.  Fowler,  1  Hen.  &  M.  4;  Shattuck 
V.  Cassidy,  3  Edw.  Ch.  152;  Newton  v.  Bronson,  3  Ker.  587;  Sutphen  v. 
Fowler,  9  Paige,  280;  Epis.  Church  v.  Wiley,  2  Hill.  Ch.  584;  Dickinson 
V.  Hoomes,  8  Gratt.  353;  Hughes  v.  Hall,  5  Munf.  431;  Vaughn  v.  Barclay, 
6  Whar.  392;  Watkins  v.  Holman,  16  Pet.  25;  Guild  v.  Guild,  16  Ala.  121; 
White  V.  White,  7  Gill.  &  J.  208.  But  see  Lewis  v.  Nelson,  1  McCarter, 
94.     [Donaldson  v.  Allen,  182  Mo.  626.] 

'  Spurr  V.  Scoville,  3  Cush.  578;  Meux  v.  Maltby,  2  Swanst.  277;  Fell 
V.  Brown,  2  Bro.  Ch.  276. 

57 


§  72.]  PROPERTY    OF    A    TRUST.  [CHAP.    II. 

ested  in  the  estate."  ^  And  where  A.  had  fraudulently  obtained 
a  deed  of  land,  in  a  foreign  State,  from  B.,  and  had  conveyed 
it  to  C.  without  consideration,  it  was  held  that  although  the 
courts  of  other  States  would  not  declare  such  deeds  to  be 
nullities,  yet  they  would  order  reconveyances  from  the  parties 
before  the  court;  and  if  such  parties  went  beyond  the  jurisdic- 
tion, the  court  could  appoint  special  commissioners  to  execute 
such  reconveyances.^  And  so  trustees  to  whom  property  has 
been  conveyed  by  the  owner  by  a  direct  conveyance  can  sue 
in  any  and  all  courts  which  have  jurisdiction  over  the  parties 
or  the  subject-matter  of  the  suit;  (a)  but  if  the  trustee  de- 
pends upon  some  court  to  clothe  him  with  the  office  and  title 
of  trustee,  he,  like  an  administrator  or  executor,  can  only  sue 
within  the  country  or  State  over  which  the  jurisdiction  of  the 
court  appointing  him  extends.' 

§  72.  The  foundation  of  this  doctrine  is  the  jurisdiction 
of  the  court  over  the  person,  which  was  originally  the  only 
jurisdiction  of  courts  of  equity.^  They  cannot,  when  the  prop- 
erty is  in  a  foreign  jurisdiction,  make  a  decree  in  rem,  binding 
upon  the  land;  but  they  can  enter  a  decree  in  personam  and 
compel  its  performance  by  process  in  contempt;^  hence  if  the 
parties  are  not  before  the  court,  or  the  court  has  no  jurisdic- 

»  Chase  v.  Chase,  2  Allen,  101;  Curtis  v.  Smith,  60  Barb.  9. 
2  Cooley  V.  Scarlett,  38  111.  316. 
»  Curtis  V.  Smith,  6  Blatch.  537. 

*  Penn  v.  Baltimore,  1  Ves.  444;  Massie  v.  Watts,  6  Cranch,  160. 

*  Ibid.;  White  v.  White,  7  Gill  &  J.  208;  Mead  v.  Merritt,  2  Paige,  404. 
[Cloud  V.  Greasley,  125  111.  313.1 

(o)  Peach  Orchard  Coal  Co.  v.  third  parties  respecting  trust  prop- 
Woodward,  105  Ky.  790;  Iowa  &  Cal.  erty  where  the  citizenship  of  the 
Land  Co.  v.  Hoag,  132  Cal.  627;  parties  is  involved,  the  citizenship 
Toronto  Gen.  Tr.  Co.  v.  C.  B.  &  Q.  of  the  ce^tuis  would  usually,  if  not 
R.  Co.,  123  N.  Y.  37;  Bradford  v.  always,  be  immaterial.  Johnson 
King,  18  R.  I.  743;  Pennington  v.  v.  Qty  of  St.  Louis,  172  Fed.  31, 
Smith,  69  Fed.  188.  40. 

In   suits   between   trustees   and 

58 


CHAP.    II.]  L.\ND    IN    A    FOREIGN    JURISDICTION.  [§  72. 

tion  over  them,  the  specific  performance  of  a  contract  cannot 
be  decreed;  ^  and  if  the  court  cannot  give  relief  by  a  decree 
against  the  person,  but  must  go  further  and  make  a  decree  to 
be  executed  by  its  own  officers  against  the  land,  it  must,  of 
course,  if  the  land  is  beyond  its  jurisdiction,  refuse  to  act.^  (a) 
It  is  not  necessary  that  the  person  to  be  bound  by  a  decree 
should  be  domiciled  within  the  jurisdiction  of  the  court.  It 
will  be  sufficient  if  the  person  is  found  and  served  with  process 
within  the  jurisdiction,  and  a  ne  exeat  may  be  obtained  to  pre- 
vent his  departing  until  the  decree  of  the  court  is  performed ; ' 
or  if  a  person  is  prosecuting  a  suit  at  law  within  a  jurisdiction, 
a  suit  in  equity  may  be  maintained,  and  an  injunction  may  be 
decreed  against  him,  and  service  on  his  attorney  in  the  suit  at 
law  would  be  a  good  service  to  bring  him  within  the  jurisdic- 
tion.^ So  if  courts  of  equity  have  jurisdiction  over  the  parties 
to  a  controversy,  they  can  enjoin  them  from  proceeding  in  the 
courts  of  foreign  States  or  countries.  (6)    This  power  does  not 

1  Spurr  V.  Scoville,  3  Gush.  578;  Meux  v.  Maltby,  2  Swanet.  277;  Fell 
V.  Brown,  2  Bro.  Ch.  276. 

*  Morris  v.  Remington,  1  Pars.  Eq.  387;  Bank  of  Virginia  v.  Adams, 
1  Pars.  Eq.  547;  Blunt  v.  Blunt,  1  Hawks,  365;  Wliite  v.  White,  7  Gill  & 
J.  208;  Gartwright  v.  Pettus,  2  Gh.  Gas.  214;  2  Swanst.  323  n. ;  Waterhouse 
V.  Stansfield,  9  Hare,  234,  10  Hare,  254;  Martin  v.  Martin,  2  R.  &  My. 
507;  Nelson  v.  Bridport,  8  Beav.  547;  Walker  v.  Ogden,  1  Dana,  252;  Wil- 
liams V.  Mans,  6  Watts,  278;  Booth  v.  Glark,  17  How.  322;  Hawley  v.  James, 
7  Paige,  213;  White  v.  White,  7  Gill  &  J.  208.  [Gibson  v.  Burgess,  82  Va. 
650.1 

*  Mitchell  V.  Bunch,  2  Paige,  606;  Baker  v.  Dumaresque,  2  Atk.  66; 
Howden  v.  Rogers,  1  Ves.  &  B.  129;  Flack  v.  Holm,  1  Jac.  &  W.  406;  Grant 
t^.  Grant,  3  Russ.  598;  Woodward  v.  Schatzell,  3  Johns  Gh.  412;  Gilbert  «;. 
Colt,  1  Hopk.  496. 

*  Chalmers  v.  Hack,  19  Maine,  124. 

(a)  Suit  does  not  lie  in  England  no  jurisdiction  of  an  action  to  re- 

to  recover  land  in  a  colony  or  for-  cover  damages  for  trespass  to  land 

eign  country.     Re  Holmes,  2  J.  &  abroad.     See  19  Law  Mag.  &  Rev. 

H.  527;  Jenney  v.  Mackintosh,  33  115;  49  Alb.  L.  J.  125. 
Gh.     D.     595.     In     British    South  (6)  Cole    v.    Cunningham,     133 

Africa  Go.  v.  Gompanhia  de  Mocam-  U.  S.  107. 

bique,  [1893]  A.  C.  602,  the  Supreme  If  the  trust  property  is  within 

Court  of  Judicature  was  held  to  have  the    territorial    jurisdiction   of  the 

59 


§  72.]  PROPERTY    OF    A    TRUST.  [CHAP.    II. 

depend  upon  any  superintending  power  of  the  courts  of  one 
country  over  those  of  another,  which  does  not  exist;  but  it  is 
founded  wholly  upon  the  power  which  courts  of  equity  have 
over  all  litigants  within  its  actual  jurisdiction.  This  jurisdic- 
tion is  in  personam,  and  the  decrees  are  directed  against  the 
persons  or  parties.  If  the  decree  should  be  disregarded,  and  a 
litigant  should  prosecute  a  suit  in  a  foreign  tribunal,  no  action 
could  be  taken  against  the  agents,  officers,  or  judges  of  such 
foreign  tribunal,  but  the  remedy  would  be  confined  to  pro- 
ceeding against  the  party  who  has  proceeded  in  contempt  of 
the  injunction.^  There  is,  however,  an  exception  to  this  prac- 
tice in  the  case  of  the  courts  of  the  several  States  and  of  the 
courts  of  the  United  States.  These  courts  have  concurrent 
jurisdiction  over  many  causes;  and  to  prevent  unpleasant  con- 
flicts of  jurisdiction,  it  has  been  held,  upon  grounds  of  public 
policy,  that  they  have  no  power  to  restrain  or  enjoin  suitors 


'  Story  Eq.  Jur.  §§  899,  900;  Dehon  v.  Foster,  4  Allen,  545;  Great 
Falls  V.  Worster,  23  N.  H.  470;  Bank  v.  Rutland,  28  Vt.  740;  Hays  v.  Ward, 
4  Johns.  Ch.  123;  Vail  v.  Knapp,  49  Barb.  299;  Massie  v.  Watts,  6  Cranch, 
158,  166;  Angus  v.  Angus,  West  Ch.  23;  Moody  v.  Gay,  15  Gray,  457; 
Sutphen  v.  Fowler,  9  Paige,  282;  Mitchell  v.  Bunch,  2  Paige,  615;  Mackin- 
tosh V.  Ogilvie,  4  T.  R.  193  n.,  3  Swanst.  365  n. ;  Cranstown  v.  Johnston,  3 
Ves.  179,  5  Ves.  277;  Bunbury  v.  Bunbury,  1  Beav.  318;  Carron  Iron  Co. 
V.  Maclaren,  5  H.  L.  Cas.  416;  Beckford  v.  Kemble,  1  S.  &  S.  7;  Harrison 
V.  Gurney,  2  Jac.  &  W.  563;  Bowles  v.  Orr,  1  Y.  &  C.  464;  Portarlington  v. 
Soulby,  3  My.  &  K.  104;  Duncan  d.  McCalmont,  3  Beav.  409;  Graham  v. 
Maxwell,  1  Mac.  &  Gord.  71;  Briggs  v.  French,  1  Sumn.  504;  Dobson  v. 
Pearce,  1  Duer,  142,  2  Kern.  156;  Pearce  v.  Olney,  20  Conn.  544;  Cage 
V.  Cassidy,  23  How.  109,  117;  Marsh  v.  Putnam,  3  Gray,  566;  Brigham 
«;.  Henderson,  1  Cush.  430  ;  Beal  v.  Burchstead,  10  Cush.  523;  Maclaren  v. 
Stainton,  16  Beav.  286.  The  case  of  CarroU  v.  Farmers'  Bank,  Harrington, 
197,  is  not  followed. 


court,  it  may  be  dealt  with  in  en-  Massachusetts  had  removed  himself 

forcement   of   the    trust   regardless  and    the  trust  property  out  of  the 

of  residence  of   the  trustee.       Du  State,  it  has  been  held  that  a  court 

Puy  V.   Standard   Mineral  Co.,   88  of  that    State  had    no   jurisdiction 

Me.  202;  Gassert  v.  Strong,  38  Mont,  to  remove  him  without  personal  ser- 

18.     But  where  a  trustee  who  did  not  vice  upon  him.     Parker  v.  Kelley, 

owe  his  appointment  to  the  court  of  166  Fed.  968. 
60 


CHAP.    II 


I>AND    IN    A    FOREIGN    JURISDICTION. 


[§72. 


from  pursuing  their  rights  in  the  courts  of  their  choice,  whether 
of  the  State  or  of  the  United  States.'  (a) 

*  Diggs  V.  Walcott,  4  Cranch,  179;  McKim  v.  Voorhice,  7  Cranch,  279; 
Sumner  r.  Marcy,  3  W.  &  M.  119;  Coster  «;.  Griswold,  4  Edw.  Ch.  377; 
English  V.  Miller,  3  Rich,  Eq.  320;  See  also  Mead  i'.  Merritt,  2  Paige, 
402;  Bicknell  v.  Field.  8  Paige,  440;  Burgess  t;.  Smith,  2  Barb.  Ch.  276; 
Grant  v.  Quick,  2  Sandf.  612;  Croft  v.  Lathrop,  2  Wall.  Jr.  103;  Cruik- 
Bhanks  v.  Roberts,  6  Madd.  104;  Bushby  v.  Munday,  5  Madd.  307;  Jonca 
V.  Geddes,  1  Phillips  Ch.  725. 


(a)  The  general  rule,  that  the 
validity  of  an  attempted  trust  is 
to  be  determined  by  the  law  where 
the  property  is  situated  if  land,  and 
by  the  law  of  the  domicile  of  the 
donor  or  testator  if  the  property 
consists  of  personalty,  is  subject 
to  considerable  qualification;  and 
the  policy  of  the  law  which  would 
render  the  trust  invalid  is  frequently 
an    important    consideration. 

Thus  the  definiteness  or  indefi- 
niteness  of  a  trust  for  charitable  pur- 
poses is  usually  determined  by  the 
law  of  the  locaUty  where  the  trust 
is  to  be  executed,  since  the  courts 
of  that  locality  have  ample  power 
to  control  and  enforce  the  proper 
execution  of  the  trust.  Hope  v. 
Brewer,  136  N.  Y.  126;  Sickles  v. 
New  Orleans,  80  Fed.  868.  See 
Congregation  Unit.  Soc.  v.  Hale, 
51  N.  Y.  S.  704. 

In  Hope  V.  Brewer,  136  N.  Y.  126, 
It  was  said :  "  Our  law  with  respect  to 
the  creation  of  trusts,  the  suspension 
of  the  power  of  alienation  of  real 
estate,  and  the  absolute  ownership  of 
personal,  was  designed  only  to  regu- 
late the  holding  of  property  under 
our  laws  and  in  our  State,  and  a 
trust  intended  to  take  effect  in  an- 
other State,  or  in  a  foreign  country, 
would  not  seem  to  be  within  either 
its  letter  or  its  spirit.     When  a  citizen 


of  this  State,  or  a  person  domiciled 
here,  makes  a  gift  of  personal 
estate  to  foreign  trustees  for  the 
purpose  of  a  foreign  charity,  our 
courts  will  not  interpose  our  local 
laws  with  respect  to  trusts  and 
accumulations  to  arrest  the  dispo- 
sition made  by  the  owner  of  his 
property,  but  will  inquire  as  to  two 
things.  First,  whether  all  the  forms 
and  requisites  necessary  to  const  i- 
tuteavalid  testamentary  instrument, 
under  our  law,  have  been  complied 
with;  and  second,  whether  the  for- 
eign trustees  are  competent  to  take 
the  gift,  for  the  purposes  expressed, 
and  to  administer  the  trust  under 
the  law  of  the  country  where  the 
gift  was  to  take  effect.  ..." 
And,  conversely,  it  has  been  held 
that  if  the  attempted  trust  is  in- 
valid in  the  State  where  it  is  to  be 
administered  the  courts  of  the  tes- 
tator's domicile  cannot  sustain  it, 
although  the  trust  would  have  been 
valid  under  the  law  of  his  domicile. 
Mount  V.  Tuttle,  183  N.  Y.  358. 
See  Cross  v.  U.  S.  Trust  Co.,  131 
N.  Y.  330;  Dammert  v.  Osbom,  140 
N.  Y.  30;  141  N.  Y.  564. 

The  law  of  the  domicile  of  the 
testator  or  donor  is  usually  applied 
to  determine  whether  or  not  an 
attempted  gift  or  trust  of  personalty 
contravenes   the   rule   against   per- 

61 


§72.] 


PROPERTY    OF    A    TRUST. 


[chap.  U. 


petuities.  Cross  v.  U.  S.  Trust  Co., 
131  N.  Y.  330;  Dammert  v.  Osbom, 
140  N.  Y.  30;  141  N.  Y.  564;  Pen- 
field  t'.  Tower,  1  N.  D.  216.  But 
because  of  conflicts  of  law  in  regard 
to  alienability  of  a  cestui's  interest 
the  statutory  modification  of  the 
rule  sometimes  yields  to  the  law 
of  the  locality  where  the  trust  is 
to  be  administered.  Thus  in  Robb 
V.  Washington  and  Jefferson  Col- 
lege, 185  N.  Y.  485,  a  bequest  of 
personalty  by  a  resident  of  New 
York  to  a  Pennsylvania  corporation 
in  trust  to  pay  life  annuities  to 
seven  persons  was  held  valid  since 
under  the  law  of  Pennsylvania  the 
interests  of  the  annuitants  were 
aUenable. 

The  validity  of  attempted  re- 
straints on  alienation,  being  a  matter 
which  concerns  the  administration 
of  the  trust,  rather  than  its  creation 
or  the  vesting  of  interests,  is  to  be 
determined  by  the  law  of  the  lo- 
caUty  where  the  aUenation  if  valid 
will  take  effect;  viz.,  in  case  of 
land,  where  the  land  is  situated,  and 
in  case  of  personalty,  where  the  trust 
is  to  be  administered.  Spindle  v. 
Shreve,  111  U.  S.  542;  In  re  Fitz- 


gerald, [1903]  1  Ch.  933.  See  Kee- 
ney  v.  Morse,  75  N.  Y.  S.  728,  71 
App.  Div.  104. 

As  to  conflict  of  laws  in  cases 
involving  the  exercise  of  powers  of 
appointment,  see  infra,  §  511  6,  note. 

It  has  been  held  by  a  New  Jer- 
sey court  that  where  a  resident  of 
Pennsylvania,  by  wiU  made  within 
a  month  before  death,  bequeathed 
a  legacy  to  a  charitable  corporation 
of  that  State,  the  Pennsylvania 
statute  rendered  the  legacy  void, 
although  the  entire  property  from 
which  the  legacy  was  to  be  paid 
was  real  estate  situated  in  New 
Jersey.  Jenkins  v.  Guarantee  Trust, 
etc.,  Co.,  53  N.  J.  Eq.  194.  See  In 
re  Piercy,  [1895]  1  Ch.  83. 

The  intention  of  the  testator 
with  regard  to  personalty  is  to  be 
interpreted  in  the  light  of  the  law 
of  his  domicile  with  respect  to  the 
interests  which  he  intended  to  give 
to  the  cesiuis  and  the  powers  he  in- 
tended to  confer  on  the  trustees. 
Rosenbaum  v.  Garrett,  57  N.  J.  Eq. 
186;  First  Nat.  Bank  v.  Nat.  Broad- 
way Bank,  156  N.  Y.  459.  See 
Minor,  Conflict  of  Laws,  §  142  et 
seq. 


62 


CHAJ'.    III.]  EXPRESS   TRUSTS,    ETC.  [§  73. 


CHAPTER  III. 

EXPRESS  TRUSTS,  AND  HOW  EXPRESS  TRUSTS  ARE  CREATED  AT 
COMMON  LAW,  SINCE  THE  STATUTE  OF  FRAUDS,  AND  IN  PER- 
SONAL PROPERTY,  AND  HEREIN  OF  VOLUNTARY  CONVEYANCES 
OR  SETTLEMENTS   IN   TRUSTS. 

§  73.       Diviflion  of  trusts,  according  to  the  manner  of  their  creation. 
§§  74-77.     Trusts  at  common  law. 
§  74.  At  common  law,  a  writing  not  necessary  to  convey  land. 

§  75.  Uses  might  also  be  created  without  writing,  and  so  may 

trusts,  in  States  where  the  statute  of  frauds  is  not  in  force. 
§  76.  Parol  cannot  control  a  written  trust  nor  engraft  an  express 

trust  on  an  absolute  conveyance. 
§  77.  Same  rule  as  to  trusts  created  by  parol. 

§  78.    The  statute  of  frauds,  and  its  form  in  various  States. 
§  79.  Effect  of  the  statute  upon  the  creation  of  express  trusts. 

§§  80,  81.       Effect  of  the  different  forms  of  the  words  of  the  statutes  in 

the  several  States. 
§  82.  How  express  trusts  may  be  proved  or  manifested  under  the 

statute. 
§  83.  Certainty  of  the  terms  of  the  trust,  and  the  person  by  whom 

it  is  to  be  declared. 
§§  84,  85.       Trusts  declared  or  proved  by  answers  in  chancery. 
§  86.  Trust  in  personal  property  may  be  created  by  parol. 

§§  87,  88.       Trusts  arising  from  gifts  mortis  causa  and  for  charitable  uses. 
§  89.     Statute  of  wills,  and  the  execution  of  wills. 
§  90.  Trust    cannot  be  created  in  a  will,  unless  it   is  properly 

executed,  to  pass  the  property. 
§§  91,  92.       But  might  be  manifested  by  a  recital  in  a  will  not  properly 

executed. 
§  93.  The  effect  of  the  necessity  of  probate  of  wills. 

§  94.  Parol  evidence  cannot  convert  a  bequest  in  a  will  into  a  trust. 

An  executor  is  a  trustee  of  the  surplus. 
§  95.     When  a  trust  is  completely  created. 

An  agreement  upon  a  valuable  and  legal  consideration  will  be 

carried  into  effect  as  a  trust  or  a  contract. 
§§  96-98.        If  a  complete  trust  is  created  without  consideration,  it  will 

be  carried  into  effect. 
§  97.  But  if  anything  remains  to  be  done  to  complete  the  trust,  it 

will  not  be  carried  into  effect,  if  without  consideration. 

63 


§  74.]  EXPRESS   TRUSTS,    ETC.  [CHAl'.    ill.. 

§    99.  Whether  a  lawful  trust  is  completely  created  or  not  a  ques- 

tion of  fact  in  each  case. 

§  100.  Trust  for  a  stranger  without  consideration  not  completed 

without  transfer  of  the  legal  title. 

§  101.  But  if  the  legal  title  cannot  be  transferred,  a  different  rule 

will  apply. 

§  102.  If  the  subject  of  the  proposed  trust  is  an  equitable  interest, 

the  legal  title  need  not  be  transferred. 

§  103.  The  instrument  of  trust  need  not  be  delivered. 

§  104.     If  once  perfected  cannot  be  destroyed,  though  voluntary. 

§  105.  Notice  not  necessary  to  trustee  of  cestui  que  trust. 

§  106,  107.    Voluntary  settlements  upon  wife  and  children. 

§  108.  When  they  will  not  be  enforced. 

§  109.  Tendency  of  the  rule  in  the  United  States. 

§  110.  Marriage  a  valuable  as  well  as  meritorious  consideration. 

§  111.  Effect  of  a  seal. 

§  111  a.    New  York  Statute  Law. 

§  73.  Having  considered  who  may  be  the  parties  to  a  trust, 
and  what  may  be  the  subject-matter  of  it,  it  is  now  to  be  con- 
sidered in  what  manner  a  trust  may  be  created,  or  how  it  may 
arise.  Trusts  are  divided  in  this  respect  into  direct  or  express 
trusts,  impHed,  resulting,  and  constructive  trusts.  Direct  or 
express  trusts  are  created  by  the  direct  or  express  words  of  a 
grantor  or  settlor.  Implied,  resulting,  and  constructive  trusts 
arise  by  operation  of  law  upon  the  transactions  of  the  parties, 
and  they  will  be  hereafter  discussed.  This  chapter  will  treat 
of  the  creation  of  direct  or  express  trusts.  In  this  connection 
it  will  be  necessary  to  inquire:  (1)  how  trusts  were  created  in 
lands  at  common  law  prior  to  the  statutes  of  frauds  and  of 
wills;  (2)  how  trusts  are  created  in  lands  since  the  statutes; 
(3)  how  trusts  may  be  created  in  personal  property;  and  (4) 
the  effect  of  a  voluntary  conveyance  or  declaration  of  trust. 

§  74.  At  common  law  a  deed  in  writing  was  not  necessary 
to  transfer  land.  What  was  called  a  feoffment  was  the  common 
and  earliest  mode  of  conveyance.  The  feoffment  was  a  short 
and  simple  charter,  and  was  accompanied  by  livery  of  seizin; 
the  feoffor  went  upon  the  land  in  the  presence  of  the  free- 
holders of  the  neighborhood  with  the  charter,  and  made  a 
64 


CHAP.    III.]  AT    COMMON    LAW.  [§  75. 

manual  delivery  to  the  feoffee  of  some  symbolical  thing  in  the 
name  of  delivering  seizin,  or  ownership  and  possession  of  all 
the  lands  named  in  the  charter.  But  not  even  this  deed  or 
charter  was  necessary.  The  land  could  be  conveyed  by  mere 
livery  of  seizin  in  the  presence  of  the  freeholders  of  the  neigh- 
borhood, who  might  be  called  upon  to  witness  the  act.  The 
feoffment  and  livery  of  seizin  operated  upon  and  transferred 
the  possession,  and  it  barred  the  feoffor  from  all  future  right  or 
possibility  of  right  in  the  land,  and  vested  an  estate  in  freehold 
in  the  feoffee.^ 

§  75.  It  has  been  a  mooted  question  whether  at  common 
law  uses  could  be  raised  by  parol,  or  even  by  deed  without  seal, 
upon  a  conveyance  of  lands.^  But  there  seems  to  be  no  good 
reason  for  the  doubt.  As  the  estate  itself  could  be  transferred 
without  wT-iting,  it  would  seem  to  follow  that  uses  declared 
at  the  time  in  the  presence  of  witnesses  might  be  effectually 
established.  Mr.  Sanders  says  that  in  their  commencement 
uses  were  of  a  secret  nature,  and  were  usually  created  by  a 
parol  declaration.^  ]Mr.  Lewin  says  that  trusts  like  uses  are 
in  their  own  nature  aver r able,  i.  e.,  may  be  declared  by  word 
of  mouth  without  writing,  in  the  absence  of  a  statute  requiring 
it ;  as  if  an  estate  had  been  conveyed  unto  and  to  the  use  of  A. 
and  his  heirs,  a  trust  might  have  been  raised  by  parol  in  favor 
of  B.^  Lord  Chief-Baron  Gilbert  reconciled  most  of  the  con- 
flicting cases  by  stating  the  law  thus:  "At  common  law  a  use 
might  have  been  raised  by  words  upon  a  conveyance  that 
passed  the  possession  by  some  solemn  act,  as  a  feoffment;  but 
where  there  was  no  such  act,  then  it  seems  a  deed  declaratory 
of  the  use  was  necessary;  for  as  a  feoffment  might  be  made  at 

1  4  Kent,  490,  481 ;  2  Sand.  Uses  and  Trusts,  1-8. 

^  2  Story,  Eq.  Jur.  §  971;  Hill  on  Trustees,  55. 

3  1  Sand,  on  Uses,  14,  218  (2d  Am.  ed.). 

*  Lewin  on  Trusts,  41.  See  Fordyce  v.  Willis,  2  Bro.  Ch.  587;  Ben- 
bow  V.  Townsend,  1  My.  &  K.  506;  Bayley  i'.  Boulcott,  4  Russ.  347;  Crabb 
V.  Crabb,  1  My.  &  K.  511;  Kilpin  v.  Kilpin,  id.  520;  Bellasis  r.  Compton, 
2  Vem.  294;  Thruxton  v.  Att.-Gen.,  1  Vern.  341. 

TOL.  I.  —  5  65 


§  75.]  EXPRESS    TRUSTS,    ETC.  [cHAP.    111. 

common  law  by  parol,  so  might  the  uses  be  declared  by  parol. 
But  where  a  deed  was  necessary  for  passing  the  estate  itself, 
it  was  also  requisite  for  the  declaration  of  the  uses.  Thus  a 
man  could  not  covenant  to  stand  seized  to  uses  without  a  deed; 
but  a  bargain  and  sale  by  parol  has  raised  a  use  without." 
Lord  Thurlow  observed  that  "  he  had  been  accustomed  to 
consider  uses  as  averrable;  but  perhaps  when  looked  into,  the 
cases  may  relate  to  feoffment,  and  not  to  conveyances  by  bar- 
gain and  sale  or  lease  and  release."  ^  And  Duke  says  expressly, 
"  that  when  the  things  given  may  pass  without  deed,  then  a 
charitable  use  may  be  averred  by  witnesses;  but  where  the 
things  cannot  pass  without  deed,  there  charitable  uses  cannot 
be  averred  without  a  deed  proving  the  uses."  ^  This  question 
is  almost  purely  speculative  in  the  United  States,  where  the 
statute  of  frauds  is  perhaps  universally  adopted,  and  all  con- 
veyances of  land  and  of  interests  in  land  must  be  by  deed  ac- 
knowledged and  recorded;  but  it  may  arise  when  questions  arise 
upon  transactions  prior  to  the  passage  of  the  statute,  as  it  arose 
in  Ohio  upon  a  conveyance  before  1810,  the  time  when  the 
statute  of  frauds  was  adopted  in  that  State;  and  it  was  deter- 
mined that  a  trust  in  land  could  be  created,  at  common  law, 
by  parol,'*  and  as  the  seventh,  eighth,  and  ninth  sections  were 
omitted  from  the  Ohio  statute,  a  trust  in  real  estate  may  still 
be  created  by  parol  .^  The  same  question  arose  in  Connecticut, 
and  it  was  denied  that  at  common  law  a  trust  in  lands  could  be 
raised  by  parol.  The  court  said  that  the  rules  of  evidence  as 
well  as  the  statute  prevented  it."  In  some  other  States  the 
statute,  or  at  least  the  seventh  section  of  the  statute,  has  not 
been  adopted;  and  in  those  States  it  has  been  determined  that 

'  Gilbert  on  Uses,  270;  Adlington  v.  Cann,  3  Atk.  141. 

'  Fordyce  v.  WiUis,  3  Bro.  Ch.  587. 

'  Duke  on  Char.  141;   Adlington  v.  Cann,  3  Atk.  141. 

*  Fleming  v.  Donohoe,  5  Ohio,  250;  but  see  Starr  v.  Starr,  1  Ohio,  321; 
Ready  v.  Kearsley,  14  Mich.  215;  Mclntire  v.  Skinner,  4  Greene,  89. 

'  Harvey  v.  Gardner,  41  Ohio  St.  646;  iRussell  v.   Bruer,  64  Ohio  St.  1, 
5.] 

*  Dean  v.  Dean,  6  Conn.  287.    Contra,  Ready  v.  Kearsley,  14  Mich.  215. 

66 


CUAP. 


III. J  STATUTE   OF    FRAUDS.  [{ 


trusts  in  land  can  be  proved  by  parol,  as  in  Texas/  North  Caro- 
lina,- Tennessee,^  and  Virginia^  [and  West  Virginia]  (a).  In 
Pennsylvania,  under  the  act  of  1799,  it  was  determined  that 
trusts  in  land  might  be  created  by  parol.''  The  statute  was 
amended,  however,  in  1851. ^  In  Kentucky,  the  seventh  section 
was  omitted;  but  the  courts  treat  all  parol  agreements  that 
would  create  a  trust  as  agreements  for  the  sale  or  purchase  of 
some  interest  in  land,  and  therefore  void  as  within  the  fourth 
section  of  the  statute.^  (6)     In  nearly  all  the  other  States  the 

'  Miller  v.  Thatcher,  9  Tex.  482:  Hale  v.  Layton,  16  Tex.  262;  Bailey 
V.  Harris,  19  Tex.  102;  Osterman  v.  Baldwin,  6  Wall.  116;  Leakey  v.  Gunter, 
25  Tex.  400;  Grooves  v.  Rush,  27  Tex.  231;  Dunham  v.  Chatham,  21  Tex. 
231;  Creney  v.  Dupree,  21  Tex.  20;  Pierce  v.  Fort,  60  Tex.  464,  and  casea 
cited;  [Brotherton  v.  Weathersby,  73  Tex.  471;  Gardner  v.  Rundell,  70  Tex. 
453;  Reed  v.  Howard,  71  Tex.  204;  Allen  v.  Allen,  107  S.  W.  528  (Tex.  1908).] 

2  Fay  V.  Fay,  2  Hayw.  131;  Shelton  v.  Shelton,  5  Jones,  Eq.  292;  Rigga 
t;.  Swann,  6  id.  118;  McLaurin  v.  Fairly,  id.  375;  Wright  v.  Cain,  93  N.  C. 
301;  Link  v.  Link,  90  N.  C.  235.  [Owens  v.  WiUiams,  130  N.  C.  165;  Black- 
burn V.  Blackburn,  109  N.  C.  488.  See  Pittman  v.  Pittman,  107  N.  C.  159; 
Gaylord  v.  Gaylord,  150  N.  C.  222.] 

'  Thompson  v.  Thompson,  1  Yerg.  100;  McLanahan  v.  McLanahan, 
6  Humph.  99;  Haywood  v.  Ensley,  8  Humph.  460;  Wilbum  v.  Spofford, 
4  Sneed,  705;  [Thompson  v.  Thompson,  54  S.  W.  145  (Tenn.  Ch.  App.  1899); 
Mee  V.  Mee,  113  Tenn.  454;  Woodfin  v.  Marks,  104  Tenn.  512.] 

*  Bank  of  United  States  v.  Carrington,  7  Leigh,  576;  Walraven  v.  Lock, 
2  P.  &  H.  549;  [See  Garrett  v.  Rutherford,  108  Va.  478.] 

6  German  v.  Gabbald,  3  Binn.  302;  Wallace  v.  Duffield,  2  S.  &  R.  521; 
Slaymaker  j;.  St.  Johns,  5  Watts,  27;  Murphy  v.  Hubert,  7  Barr,  420;  Tritt 
V.  Crotzer,  13  Penn.  St.  452;  Wetherell  v.  Hamilton,  15  id.  195;  Money  v. 
Herrick,  18  id.  128;  Blyholder  v.  Gilson,  id.  134.  See  Freeman  v.  Freeman, 
2  Pars.  Eq.  81. 

"  Shoofstall  V.  Adams,  2  Grant's  Caa.  209;  Bamett  v.  Dougherty,  32 
Pa.  St.  371. 

'  Parker  v.  Bodley,  4  Bibb,  102;  Childs  v.  Woodson,  2  Bibb,  72;  [Hocker 
V.  Gentry,  3  Met.  (Ky.)  463.     See  Garth  v.  Davis,  120  Ky.  106.] 

(a)  Currence     v.  Ward,  43   W.  land  to  hold  it  in  trust  falls  within 

Va.  367;    Hamilton   v.   McKinney,  other  provisions  of  the  statute  which 

62  W.  Va.  317;  Crawford  v.  Work-  have  been  adopted.     It  is  treated 

man,  64  W.  Va.  19.  as  an  attempted  conveyance  without 

(6)  In  States  where  the  seventh  writing.     Accordingly  in  several,  if 

section  of  the  Statute  of  Frauds  is  not  all  of  these  States,  an  express 

not  in  force  it  has  been  held  that  trust  in  land  cannot  be  created  by 

a  parol  agreement  by  the  owner  of  parol     except     contemporaneously 

67 


§  7G.]  EXPRESS    TRUSTS,    ETC.  [cHAP.    III. 

statute  of  frauds  was  substantially  re-enacted  at  an  early  day 
in  its  full  extent,  and  in  those  States  it  has  not  since  been  an 
open  question  whether  parol  trusts  could  be  created.* 

§  76.  It  must  also  be  observed  that  if  a  trust  is  declared 
in  writing,  courts  never  permit  parol  proof  of  a  trust  to  con- 
tradict an  intention  expressed  upon  the  face  of  the  instrument 

'  See  Browne's  Statute  of  Frauds,  §§  79-82;  Anding  v.  Davis,  38  Miss. 
574;  Harper  v.  Harper,  5  Bush,  177;  Wolf  v.  Corley,  30  Md.  356;  Eaton  v. 
Eaton,  35  N.  J.  L.  290  ;  Knox  v.  McFarren,  4  Col.  586  ;  Thomas 
V.  Merry,  113  Ind.  83;  McGinness  v.  Barton,  71  Iowa,  644;  Hain  v. 
Robinson,  72  Iowa,  735;  Ingham  v.  Burnell,  31  Kansas,  333;  Lawrence 
t;.  Lawrence,  14  Oregon,  77.  [Sheehan  v.  Sullivan,  126  Cal.  189;  Doran 
I'.  Doran,  99  Cal.  311  ;  Von  Trotha  v.  Bamberger,  15  Col.  1;  Mcintosh  v. 
Green,  25  App.  D.  C.  456;  Smith  v.  Peacock,  114  Ga.  691,  697;  Benson 
t'.  Dempster,  183  111.  297;  Hays  v.  Marsh,  123  Iowa,  81;  Gregory  v.  Bowlsby, 
115  Iowa,  327;  Gee  v.  Thrailkill,  45  Kan.  173;  Rapley  v.  McKinney's 
Estate,  143  Mich.  508;  Thompson  v.  Marley,  102  Mich.  476;  Dougan  v. 
Bemis,  95  Minn.  220;  Ryan  v.  Williams,  92  Minn.  506;  Home  v.  Higgins, 
76  Miss.  813;  Crawley  v.  Crafton,  193  Mo.  421;  Marvel ;;.  Marvel,  70  Neb. 
498;  Pruitt  v.  Pruitt,  57  S.  C.  155;  Rogers  v.  Rogers,  52  S.  C.  388;  FiUingham 
V.  Nichols,  108  Wis.  49.] 

with  a  valid  transfer  of  the  legal  Gaylord,  150  N.  C.  222.     See  also 

title.     Kelly  v.  McNeill,  118  N.  C.  Troll    v.    Carter,    15    W.    Va.    567; 

349;    Hamilton    v.    Buchanan,    112  Poling  v.  Williams,  55  W.  Va.  69. 

N.  C.  463,  471 ;  Thompson  v.  Thomp-  But  the  ordinary  words  of  haben- 

8on,  54  S.  W.  145  (Tenn.  Ch.  App.  dum  in  fee  to  the  named  grantee  of 

1899);  Mee  v.  Mee,  113  Tenn.  454;  the  legal  title  have  been  held  not 

Woodfin  V.  Marks,  104  Tenn.  512;  to  exclude  parol  evidence  of  a  trust 

Allen  V.  Allen,  107  S.  W.  528  (Tex.  in  favor  of  a  third  party  or  evidence 

1908) ;  Currence  v.  Ward,  43  W.  Va.  that  the  deed  was  in  fact  given  only 

367;  Hamilton  v.  McKinney,  52  W.  as  security.     It  was  said,   "There 

Va.    317;    Crawford    v.    Workman,  is  a  well-recognized  distinction  be- 

64  W.  Va.   19.     See  also  Pittman  tween  contradicting  a  deed  or  im- 

V.  Pittman,  107  N.  C.  159;  Smiley  pairing  its  legal  operation  and  the 

V.  Pearce,  98  N.  C.  185.    It  has  also  arising   out   of    the   transaction   of 

been  held  in  these  States  that  even  an  equity  dehors  the  deed  binding 

a  contemporaneous  parol  agreement  the    grantee's    conscience    to    hold 

will  not  be  admitted  in  evidence  to  the  land  for  the  real  purposes  of  the 

establish    a   trust   in   contradiction  conveyance.  ..."   Mee  v.  Mee,  113 

to  the  terms  of  the  deed.     Mee  v.  Tenn.  454. 
Mee,    113   Tenn.   454;   Gaylord  v. 

68 


CHAP.    III.]  STATUTE    OF    FRAUDS.  [§  76. 

itself,^  for  that  would  be  to  allow  parol  evidence  to  vary,  con- 
tradict, or  annul  a  written  instrument;  nor  is  it  necessary,  in 
order  to  exclude  evidence,  that  the  beneficial  estate  should  be 
expressly  conferred  upon  the  grantee  of  the  legal  estate,  for  a 
trust  cannot  be  raised  by  parol  if,  from  the  nature  of  the  instru- 
ment or  from  any  circumstance  of  evidence  appearing  upon  the 
face  of  it,  an  intention  can  be  clearly  implied  of  making  the 
holder  of  the  legal  estate  also  the  holder  of  the  beneficial  estate.^ 
Thus  a  trust  cannot  be  proved  by  parol  where  a  valuable  con- 
sideration was  paid  from  the  grantee's  own  money .^  Oral  proof 
cannot  be  heard,  to  engraft  an  express  trust  on  a  conveyance 
absolute  in  its  terms.^  (a)     Nor  will  subsequent  declarations  of 

»  Lewis  V.  Lewis,  2  Ch.  R.  77;  Finch's  Cas.  4  Inst.  86;  Childers  v.  Child- 
ers,  3  K.  &  J.  310;  1  De  G.  &  J.  482;  Fordyce  v.  Willis,  3  Bro.  Ch.  587; 
Leman  v.  Whitley,  4  Russ.  423;  Lloyd  v.  Inglis,  1  Des.  333;  Sims  v.  Smith, 
11  Ga.  198;  Harris  v.  Barnett,  3  Grat.  339;  Dickenson  v.  Dickenson,  2 
Murph.  279;  Steere  v.  Steere,  5  Johns.  Ch.  1;  Gainus  v.  Cannon,  42  Ark. 
503;  [McDermith  v.  Voorhees,  16  Colo.  402;  Nevius  v.  Nevius,  117  N.  Y. 
App.  Div.  236,  101  N.  Y.  S.  1091.1 

*  Ibid.;  Lewin  42,  5th  ed.;  Gilbert  on  Uses,  56,  57;  Pilkington  v.  Bailey, 
7  Bro.  P.  C.  526;  Dean  v.  Dean,  6  Conn.  285;  Hutchinson  v.  Tindall,  2 
Green,  Ch.  257;  Starr  v.  Starr,  1  Ohio,  321;  Movan  v.  Hays,  1  Johns.  Ch. 
343;  Philbrooke  v.  Delano,  29  Maine,  410;  Clagett  v.  Hall,  9  Gill  &  J.  80. 
See  notes  to  WooUam  v.  Heam,  2  Lead.  Cas.  Eq.  404;  Imham  v.  Child,  1 
Bro.  Ch.  92;  Bartlett  v.  Pickersgill,  1  Ed.  515. 

="  Ibid. 

*  Kelly  V.  Karsner,  72  Ala.  110;  Lawson  v.  Lawson,  117  111.  98;  Green 
V.  Gates,  73  Mo.  122;  Hansen  v.  Bcrthelson,  19  Neb.  433;  Cain  v.  Cox,  23 
W.  Va.  594;  Pavey  v.  American  Ins.  Co.,  56  Wis.  221. 

(a)  The  better  opinion  is  that  a  provides  that  all  express  trusts  must 
conveyance  of  personal  property  be  "created  or  declared  in  writing." 
by  a  bill  of  sale,  absolute  in  form,  Ga.  Code  (1895)  §  3153;  Smith  v. 
may  be  shown  by  parol  evidence  to  Peacock,  114  Ga.  691,  697.  Evi- 
have  been  made  in  trust,  even  for  dence  of  a  trust  or  a  pledge  is  con- 
the  assignor,  or  by  way  of  security,  sidered  not  to  contradict  or  be  in- 
Martin  v.  Martin,  43  Or.  119;  consistent  with  the  instrument  of 
Raphael  v.  Mullen,  171  Mass.  Ill;  transfer,  since  such  evidence  seeks, 
Minchin  f.  Minchin,  157  Mass.  265;  not  to  limit  the  conveyance  of  the 
RileyD.Hampsliire  County  Bank,  164  legal  title,  but  only  to  show  the  pur- 
Mass.,  482,  486.  But  see  Nevius  v.  pose  for  which  the  legal  title  was 
Nevius,  101  N.  Y.  S.  1091,  117  App.  conveyed. 

Div.  236.    But  in  Georgia  the  Code  The  better  opinion  in  regard  to 

GO 


76.] 


EXPRESS   TRUSTS,    ETC. 


[chap. 


III. 


the  grantor,  oral  or  written,  avail  for  this  purpose.'  To  establish 
by  parol  that  the  grantee  in  an  absolute  deed  is  a  trustee,  it 
must  be  shown  that  the  whole  or  a  part  of  the  purchase-money 
was  not  his,  or  that  fraud,  artifice,  solicitation,  or  persuasion 
entered  into  the  inducements  for  executing  the  deed.  A  mere 
breach    of   a   parol    agreement   is   not    enough    to    create    a 

»  Phillips  V.  South  Park  Com'rs,  119  111.  626.     [Rusaell  v.  Bruer,  64 
Ohio  St.  1,  5.1 


proof  of  a  trust  or  mortgage  when 
real  estate  is  conveyed  by  absolute 
deed  is  that  the  same  rule  should 
hold,  except  where  the  statute  of 
frauds  prevents  the  establishment 
of  a  trust  in  land  by  parol.  See  Mee 
V.  Mee,  113  Tenn.  454;  Kelly  v. 
McNeill,  118  N.  C.  349;  Stafford  v. 
Stafford,  29  Tex.  Civ.  App.  73.  But 
see  Crawford  v.  Workman,  64  W.  Va. 
19.  In  Minchin?;.  Minchin,  157  Mass. 
265,  267,  it  is  said:  "In  the  view 
of  equity  the  evidence  does  not 
contradict  the  writing,  but  tends 
to  establish  an  equitable  title  con- 
sistent with  the  legal  title  which  was 
conveyed  to  the  defendant  by  the 
writing  and  by  the  delivery.  In  a 
grant  of  land  with  fuU  covenants 
but  in  trust  for  the  grantor,  whether 
the  trust  is  declared  in  the  deed  of 
grant  or  in  a  writing  signed  by  the 
grantee,  the  trust  is  not  regarded 
as  inconsistent  with  the  grant  or  the 
covenants,  and  when  the  statute 
of  frauds  does  not  require  the  trust 
to  be  created  or  proved  by  a  written 
instrument,  the  oral  declaration  of 
such  a  trust  is  not  in  equity  regarded 
as  inconsistent  with  a  similar  grant 
of  personal  property." 

In   most   States   the   statute   of 

frauds  is  sufficient  to  exclude  oral 

evidence  of  express  trusts  in  cases 

of  absolute  conveyances  of  land,  and 

70 


the  rule  that  a  trust  will  not  result 
to  the  grantor  in  such  a  case  rests 
upon  other  grounds.  See  infra, 
§  162.  But  it  has  often  been  held 
that  such  a  conveyance  of  land  may 
be  shown  by  parol  evidence  to  be  in 
fact  a  mortgage.  Potter  v.  Kim- 
ball, 186  Mass.  120;  Campbell  v. 
Dearborn,  109  Mass.  130;  Weiseham 
V.  Hocker,  7  Okla.  250;  Troll  v. 
Carter,  15  W.  Va.  567;  Stafford  v. 
Stafford,  29  Tex.  Civ.  App.  73. 
See  infra,  §  226,  note. 

In  the  absence  of  fraud,  accident 
or  mistake,  parol  evidence  will  not 
be  admitted  to  vary  the  terms  of  an 
established  trust  or  to  establish  a 
trust  which  is  inconsistent  with  the 
terms  of  the  conveyance,  Mee  v. 
Mee,  113  Tenn.  454;  Walton  v. 
Follansbee,  165  111.  480,  or  to  dis- 
prove the  trust  declared  or  recited 
in  the  deed.  McDermith  v.  Voor- 
hees,  16  Colo.  402.  But  a  mere  de- 
scription of  the  grantee  in  a  deed 
as  trustee  without  naming  a  bene- 
ficiary or  setting  out  the  terms  of  any 
trust  is  not  conclusive  and  will  not 
shut  out  parol  evidence  that  no 
trust  was  in  fact  intended.  An- 
drews V.  Atlanta  R.  E.  Co.,  92  Ga. 
260;  Trammel  v.  Inman,  115  Ga. 
874;  Te  Teira  v.  Te  Roera  Tareha, 
[1902]  A.  C.  56. 


CHAP.    III.]  STATUTE    OF    FRAUDS.  [§  77. 

trust.^  A  parol  trust  is  not,  however,  an  absolute  nullity  in  any 
case,  but  rests  in  the  election  of  the  trustee  in  those  cases  where 
the  cestui  cannot  enforce  it.  The  courts  will  protect  the  trustee 
in  the  execution  of  the  trust  if  he  chooses  so  to  do,  and  as  far  as 
possible  will  protect  the  beneficiaries  in  the  enjoyment  of  the 
fruits  of  its  execution.^  (6)  But  where  A.  agreed  to  purchase 
land  for  B.,  and  purchased  it  and  took  an  absolute  title  to  him- 
self, it  was  held  that  B.,  not  being  privy  to  the  deed,  was  not 
bound  by  it,  and  might  prove  a  trust  by  parol. ^  And  where 
one  holds  lands  in  secret  trust  to  defraud  creditors,  a  subsequent 
parol  agreement  by  which  the  land  is  to  be  held  in  trust  for 
the  creditors,  &c.,  will  be  good.^ 

§  77.  If  a  trust  is  once  effectually  created  by  parol,  it  cannot 
subsequently  be  revoked  or  altered  by  the  party  creating  it, 
for  it  is  governed  by  the  same  rules  that  govern  trusts  created 
by  writing.^  And  if  a  parol  trust  has  been  executed  it  cannot 
be  revoked,  and  if  money  has  been  paid  upon  it,  it  cannot  be 
recovered  back.^    The  declarations  of  the  grantor,  to  create  a 

'  Hollinshead's  App.  103  Penn.  St.  158.  [Von  Trotha  v.  Bamberger, 
15  Colo.  1.] 

«  Karr  v.  Washburn,  56  Wis.  303. 

»  Strong  V.  Glasgow,  2  Murph.  289;  Squire's  App.  70  Penn.  St.  266. 

*  Langsdale  v.  Woollen,  99  Ind.  575. 

s  Kilpin  V.  Kilpin,  1  M.  &  K.  531;  Adlington  v.  Cann,  3  Atk.  151;  Free- 
man V.  Freeman,  2  Pars.  Eq.  81;  Crabb  v.  Crabb,  1  M.  &  K.  511;  Walgrave 
V.  Tibbs,  2  K.  &.  J.  313;  Lee  v.  Ferris,  2  K.  &  J.  357;  Russell  t;.  Jackson,  10 
Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  In  re  Dunbar,  2  Jon.  &  La. 
120;  Brown  v.  Brown,  12  Md.  87;  Greenfield's  Est.,  14  Penn.  St.  489;  Kirk- 
patrick  v.  McDonald,  11  id.  387;  Tritt  v.  Crotzer,  13  id.  451. 

•  Eaton  V.  Eaton,  35  N.  J.  L.  290. 

(6)  Thus  it  has  been  held  that  539;    Martin    v.    Remington,     100 

creditors  of  the  trustee  cannot  set  Wis.   540;  Blaha  v.   Borgman,    124 

aside  a  conveyance  by  him  in  exe-  N.  W.  1047  (Wis.  1910)  ;   Bicocchi 

cution  of  the  parol  trust.     McCor-  v.  Casey-Swasey  Co.,  91  Tex.  259. 

mick  Co.  V.  Griffin,  116  Iowa,  397;  But  see  Pruitt  v.  Pruitt,   57  S.  C. 

Gottstein  v.  Wist,  22  Wash.  581 ;  155  ;    Pierce  v.    Hower,     142  Ind. 

Columbia  Bank  v.  Baldwin,  64  Neb.  626. 
732;  Silvers  v.  Potter.  48  N.  J.  Eq. 

71 


§  77.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

trust,  must  be  prior  to,  or  contemporaneous  with,  the  convey- 
ance, for  it  would  be  against  reason  and  the  rules  of  evidence 
to  allow  a  man  who  has  parted  with  all  interest  in  an  estate  to 
charge  it  with  any  trust  or  incumbrance  after  such  convey- 
ance ;  ^  nor  can  the  cestui  que  trust  give  his  own  declarations  in 
evidence  to  create  a  trust  in  his  favor;'  but  where  parties  may 
be  witnesses,  he  can  testify  to  the  facts  like  any  other  witness; 
and  if  the  circumstances  are  such  as  to  raise  a  resulting  or 
implied  trust  upon  the  conveyance,  the  person  entitled  to  such 
beneficial  interest  has  the  right  at  any  time  to  declare  the 
trust.2  The  declarations  of  a  trustee  can  be  given  in  evidence 
to  show  how  he  held  the  estate;  ^  that  is,  in  those  States  where 
the  trust  may  be  proved  by  parol.  But  these  declarations  must 
be  clear  and  explicit,  and  point  out  with  certainty  both  the 
subject-matter  of  the  trust  and  the  person  who  is  to  take  the 
beneficial  interest.  Casual  and  indefinite  expressions  of  mere 
inchoate  intentions,  not  carried  into  effect,  are  insufficient  to 
raise  a  trust.^  If  a  pension  from  the  government  is  granted  to 
A.,  a  trust  cannot  be  raised  by  parol  in  favor  of  B.,  for  a  pension 
is  conferred  as  an  honor,  and  is  founded  upon  the  personal  ser- 
vices and  merits  of  the  annuitant.^ 

1  Adlington  v.  Cann,  3  Atk.  145;  Walgrave  v.  Tibbs,  2  K.  &  J.  313;  Lee 
V.  Ferris,  2  K.  &  J.  357;  Russell  v.  Jackson,  10  Hare,  204;  Lomax  v.  Ripley, 
3  Sm.  &  Gif.  48;  Brown  v.  Brown,  12  Md.  87;  In  re  Dunbar,  2  Jon.  &  La.  120; 
Tritt  V.  Crotzer,  13  Penn.  St.  451;  Ivory  v.  Bums,  56  id.  303;  Bennett  v. 
Fulmer,  49  Penn.  St.  155;  Knox  v.  McFarren,  4  Col.  586.  See  Chapman 
V.  Wilbur,  3  Oregon,  326,  for  a  particular  case.  [Russell  v.  Bruer,  64  Ohio 
St.  1;  Phillips  V.  Sherman,  39  S.  W.  187  (Tex.  Civ.  App.).] 

2  Bellasis  v.  Compton,  2  Vern.  294;  Lee  v.  Huntoon,  1  Hoff.  Ch.  447; 
Harris  v.  Barnett,  3  Grat.  339;  Reid  v.  Reid,  12  Rich.  Eq.  213. 

»  Ambrose  v.  Ambrose,  1  P.  Wms.  322;  Gardner  v.  Rowe,  2  S.  &  S.  346; 
5  Russ.  258;  Wilson  v.  Dent,  3  Sim.  385;  Willard  v.  Willard,  56  Penn.  St. 
119;  Dollinger's  App.  71  id.  425. 

*  Kilpin  V.  Kilpin,  1  M.  &  K.  520;  Benbow  v.  Townsend,  1  id.  506;  Bay- 
ley  V.  Boulcott,  4  Russ.  345;  Harrison  v.  McMennomy,  2  Edw.  Ch.  251 
Slocum  V.  MarshaU,  2  Wash.  C.  C.  398;  Sidle  v.  Walters,  5  Watts,  389 
Mercer  v.  Stock,  1  S.  &  M.  Ch.  479;  Hurst  v.  McNeil,  1  Wash.  C.  C.  70 
Smith  V.  Patton,  12  W.  Va.  541;  Childs  v.  Wesleyan  Cemetery  Ass.,  4  Mo. 
App.  74. 

^  Fordyce  v.  WiUis,  3  Bro.  Ch.  587. 

72 


CHAP.    HI.]  STATUTE    OF    FRAUDS.  [§  "8. 

§  78.  The  seventh  section  of  the  statute  of  frauds  enacted 
that  all  declarations  or  creations  of  trusts  or  confidences  in 
any  lands,  tenements,  or  hereditaments,  "shall  be  manifested 
and  proved  by  some  writing  signed  by  the  party  who  is  by 
law  to  declare  such  trust,  or  by  his  last  will  in  writing,"  or 
else  they  shall  be  utterly  void  and  of  none  effect. 

Sec.  8.  Provided  always  that  where  any  conveyance  shall 
be  made  of  any  lands  or  tenements  by  which  a  trust  or  con- 
fidence shall  or  may  arise  or  result  by  the  implication  or 
construction  of  law,  or  be  transferred  or  extinguished  by  an 
act  or  operation  of  law,  then  and  in  every  such  case  such  trust 
or  confidence  shall  be  of  like  force  as  the  same  would  have 
been  if  this  statute  had  not  been  made,  anything  hereinbefore 
to  the  contrary  notwithstanding. 

Sec.  9.  All  grants  or  assignments  of  any  trust  or  confidence 
shall  likewise  be  in  writing,  signed  by  the  party  granting  or 
assigning  the  same,  or  by  such  last  will  or  devise,  or  else  shall 
likewise  be  utterly  void  and  of  none  effect.^ 

'  29  Car.  II.  c.  3,  §§  7,  8,   9. 

In  Arkansas,  Florida,  Georgia,  Illinois,  Maryland,  Missouri,  New  Jersey, 
and  South  Carolina,  the  statute  of  Charles  is  re-enacted,  almost  in  words, 
and  the  trust  or  confidence  must  be  "manifested  or  proved  by  some  writing 
signed  by  the  party." 

In  Alabama,  California,  Maine,  Massachusetts,  Michigan,  Mississippi, 
New  Hampsliire,  Rhode  Island,  Vermont,  and  Wisconsin,  "the  trust  must 
be  created  or  declared  by  instrument  in  writing  signed  by  the  party  creat- 
ing or  declaring  the  same." 

In  New  York,  the  seventh  section  was  re-enacted;  but  in  the  revised 
statutes  it  was  enacted  "  that  the  trust  should  be  created  or  declared  by 
deed  or  conveyance  in  writing,"  signed,  etc. ;  but  in  1S60  it  was  enacted 
"that  any  writing  signed  by  the  parties"  should  be  sufTicient. 

In  Pennsylvania,  the  seventh  section  was  not  enacted,  and  trusts  could 
be  created  and  proved  by  parol;  but  in  1856  the  seventh  section  was  sub- 
stantially enacted. 

In  Texas,  North  Carolina,  Tennessee,  Virginia,  West  Virginia,  Connecti- 
cut, Delaware,  Kentucky,  and  Ohio,  the  seventh  section  does  not  seem  to 
be  re-enacted.    See  ante,  §  75. 

In  Iowa,  declarations  and  creations  of  trust  or  powers  in  relation  to  real 

73 


§79.] 


EXPRESS    TRUSTS,    ETC. 


[chap.    Ill, 


§  79.  Wherever  this  statute  or  the  substance  of  the  statute 
is  in  force,  express  trusts  in  realty  cannot  be  proved  by  parol.^  (a) 

estate  muat  be  executed  in  the  same  manner  as  deeds  of  conveyance.  [Code 
of  Iowa  (1897)  §  2918.] 

The  ninth  section  seems  to  be  in  force  in  all  the  States. 

'  Gerry  v.  Stimson,  60  Maine,  186;  Stevenson  v.  Crapnell,  114  III.  19; 
[Brock  V.  Brock,  90  Ala.  86;  Von  Trotha  v.  Bamberger,  15  Colo.  1;  Farrand 
V.  Beshoar,  9  Colo.  291;  Simons  v.  Bedell,  122  Cal.  341;  Dick  v.  Dick,  172 
111.  578;  Ellis  V.  Hill,  162  111.  557;  McDearmon  v.  Bumham,  158  111.  55; 
Moore  v.  Horsley,  156  111.  36;  Pearson  v.  Pearson,  125  Ind.  341;  Keller  v. 
Strong,  104  Iowa,  585;  Sherley  v.  Sherley,  97  Ky.  512;  Wentworth  v.  Shibles, 
89  Me.  167;  Rogers  v.  Ramey,  137  Mo.  598;  Cameron  v.  Nelson,  57  Neb. 
381;  Thomas  v.  Churchill,  48  Neb.  266;  Taft  v.  Dimond,  16  R.  I.  584;  Bick- 
ford  V.  Bickford,  68  Vt.  525;  Levis  v.  Kengla,  8  App.  D.  C.  230,  169  U.  S. 
234;  Ducie  v.  Ford,  138  U.  S.  587.] 


(a)  A  trust  in  personal  property 
may  be  created  and  proved  by 
parol  except  in  Georgia.  Chase  v. 
Perley,  148  Mass.  289;  Taft  v.  Stow, 
167  Mass.  363;  Bath  Savings  Inst'n 
V.  Hathorn,  88  Maine,  122;  Hirsh  v. 
Auer,  146  N.  Y.  13;  Pitney  v.  Bol- 
ton, 45  N.  J.  Eq.  639;  Eipper  v. 
Benner,  113  Mich.  75;  Bedell  v. 
Scoggins  (Cal.),  40  Pac.  954;  Ray 
V.  Simmons,  11  R.  I.  266;  Gadsden 
V.  Whaley,  14  S.  C.  210.  And  land 
eubseqently  bought  with  the  pro- 
ceeds of  personalty  held  upon  a 
parol  trust  will  be  impressed  with 
the  same  trust  without  writing. 
Maher  v.  Aldrich,  205  111.  242; 
Cobb  V.  Knight,  74  Me.  253.  The 
same  is  true  of  land  acquired  by 
the  trustee  on  foreclosure  of  a  mort- 
gage held  upon  a  parol  trust.  Berry 
V.  Evendon,  14  No.  Dak.  1. 

Although  an  express  trust  in  land 
cannot  be  established  by  parol,  a 
parol  agreement  to  hold  the  pro- 
ceeds of  a  sale  of  land  in  trust  for 
another  if  based  upon  a  suflBcient 
consideration  has  frequently  been 
held  to  establish  a  trust  in  the  pro- 
ceeds. Worley  v.  Sipe,  111  Ind.  238; 
74 


Thomas  v.  Merry,  113  Ind.  83; 
Talbott  V.  Barber,  11  Ind.  App.  1,  7; 
Bork  V.  Martin,  132  N.  Y.  280; 
Spencer  v.  Richmond,  46  N.  Y. 
App.  Div.  481,  61  N.  Y.  S.  397; 
Bechtel  v.  Ammon,  199  Pa.  St.  81. 

It  has  been  said  in  such  cases  that 
the  parol  trust  is  not  in  the  land 
but  in  the  proceeds  of  the  land;  and, 
although  the  agreement  to  sell  can- 
not be  enforced,  if  that  part  of  the 
trust  has  been  executed  by  the  trus- 
tee, the  case  stands  aa  a  trust  in 
personalty.  On  this  view  the  trust 
does  not  come  into  existence  at  the 
time  of  the  parol  agreement,  but 
only  when  the  conversion  is  made, 
and  some  cases  have  held  that  the 
parol  trust  cannot  attach  to  the 
proceeds  unless  the  trustee  makes 
a  new  promise.  Collar  v.  CoUar. 
75  Mich.  414,  and  86  Mich.  507, 
13  L.  R.  A.  621;  Rapley  v.  McKin  ■ 
ney's  Estate,  143  Mich.  508;  Calder 
V.  Moran,  49  Mich.  14;  Marvel  v 
Marvel,  70  Neb.  498;  Dexter  t- 
MacDonald,  196  Mo.  373  iseTnble)i 
Gee  V.  Thrailkill,  45  Kan.  173  (sem- 
ble).  Bork  v.  Martin,  132  N.  Y.  280, 
ubi  supra,  seems  to  hold  that  no 


CHAP.    111.]  STATUTE    OF    FRAUDS.  [§  70. 

In  suits  to  establish  or  enforce  trusts  in  real  estate  parol  proof 
is  insufficient.*  They  must  be  manifested  or  proved  by  some 
writing,  signed  by  the  party  to  be  charged  with  the  trust. 
They  need  not  be  created  and  declared  in  writing,  but  only  mani- 
fested or  proved  by  writing;  for  if  there  be  written  evidence  of 
the  existence  of  the  trust,  the  danger  of  parol  evidence,  against 
which  the  statute  was  directed,  is  effectually  removed.^  It 
may  be  questioned  whether  it  was  not  the  intention  of  the 
statute  that  the  creation  or  declaration  itself  should  be  in  writ- 
ing; for  the  ninth  section  enacts  that  "all  grants  and  assign- 
ments of  any  trust  or  confidence  shall  likewise  be  in  writing, 
signed  by  the  party  granting  or  assigning  the  same,  or  by  his 

'  Todd  V.  Munson,  53  Conn.  579.  It  is  to  be  remembered,  however, 
that  in  suits  to  enforce  contracts,  correct  mistakes,  and  punish  or  prevent 
frauds,  it  may  be  necessary  to  show  incidentally  an  express  trust  by  parol. 
Id.  592.  And  so  a  parol  trust  may  be  proved  in  order  to  show  that  the 
apparent  owner  has  no  interest  in  the  land  which  equity  will  subject  to 
the  lien  of  a  judgment.    Hays  v.  Reger,  102  Ind.  524. 

2  Forster  v.  Hale,  3  Ves.  Jr.  707;  5  Ves.  315;  Smith  v.  Mathews,  3  De 
G.,  F.  &  J.  139;  Randall  v.  Morgan,  12  Ves.  74;  Unitarian  Society  v.  Wood- 
bury, 14  Me.  281;  Steere  v.  Stecre,  5  Johns.  Ch.  1;  Movan  v.  Hays,  1  id. 
339;  McCubbin  v.  CromweU,  7  Gill  &  J.  157;  BarreU  v.  Joy,  16  Mass.  221 
Pinney  v.  Fellows,  15  Vt.  525;  Rutledge  v.  Smith,  1  McCord,  Ch.  119 
Johnson  v.  Ronald,  4  Munf.  77;  Hutchinson  v.  Tindall,  2  Green,  Ch.  357 
Lane  v.  Ewing,  31  Mo.  75;  Safford  v.  Rantoul,  12  Pick.  233;  Gibson  v. 
Foote,  40  Miss.  788;  Reid  v.  Reid,  12  Rich.  Eq.  213.      Numerous  other 
cases  might  be  cited;  but  the  rule  ia  so  well  estabUshed  that  it  is  not  necessary. 

such  new  promise  is  necessary,  but  tion  of  law.    Valentine  v.  Richardt, 

that  the  trust  will  attach  to  the  126  N.  Y.  272;  Sanford  v.  Sanford, 

proceeds  even  though  at  the  time  139  U.  S.  642;  Hudson  v.   White, 

of  the  sale  the  trustee  has  indicated  17  R.  I.  519;  Von  Trotha  v.  Bamber- 

an  intention  not  to  hold  them  upon  ger,   15  Colo.  1;  Roby  v.  Colehour, 

a  trust.     This  is  an  extreme  view,  135  111.  300;  Myers  v.  Myers,  167 

for  it  is  hard  to  find  any  basis  for  the  111.  52;  Ryan  v.  O'Connor,  41  Ohio 

express  trust  in  the  proceeds  unless  St.  368;  Davie  v.  Whitehead  [1894], 

the  sale  by  the  trustee  was  at  least  2  Ch.  133;  or  when  equity  imposes 

intended  to  be  in  execution  of  his  a  trust  from  the  parties'  acts  and 

unenforceable  agreement.    See  Ben-  relations  not  dependent  merely  upon 

son  V.  Dempster,  183  111.  297.  oral  evidence.    McCahill  v.  McCahill 

The  statute  of  frauds  does  not  32  N.  Y.  S.  836;  Sherley  v.  Sherley, 

apply  when  a  trust  results  by  opera-  97  Ky.  512. 

75 


§   81.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

last  will  or  devise;  "  but  whatever  may  have  been  the  actual 
intention  of  the  legislature,  the  construction  put  upon  the 
clause  is  now  firmly  established.^  A  mere  admission  in  writing 
that  parol  promises  to  hold  the  land  in  trust  were  made  at  the 
time  of  the  conveyance  is  not  enough  to  give  life  to  the  trust.^ 
It  is  well  established  that  the  interest  of  the  cestui  que  trust 
in  land  cannot  be  conveyed  by  parol  .^  (a) 

§  80.  In  many  of  the  United  States  the  words  of  the  seventh 
section  are  replaced  by  words  to  the  effect  that  "  the  trust  must 
be  created  or  declared  by  an  instrument  in  writing  signed  by 
the  party;  "  ^  (b)  and  the  question  has  arisen  whether  this  is 
a  change  of  the  law  as  established  under  the  words  of  the  original 
statute  of  frauds. 

§  81.  The  question  has  not  been  directly  adjudged  in  a 
reported  case  raising  the  exact  point;  but  it  has  arisen  incident- 
ally before  the  courts,  and  the  intimations  are  that  these  words 
do  not  change  the  law,  and  that  "created  and  declared"  are 
equivalent  to  "manifested  and  proved."  In  practice,  the 
great  majority  of  trusts  are  not  created  by  a  deed  or  conveyance 
of  land,  but  they  arise  from  the  transactions  and  agreements  of 
parties;  and  if  these  transactions  or  agreements  are  evidenced 
in  writing,  the  trust  is  sufficiently  created,  declared,  manifested, 
or  proved.  Thus  Mr.  Justice  Bennett,  in  Vermont,  where  the 
words  are  "created  and  declared  by  instrument,"  said,  that 
"our  statute  is  the  same  in  effect  as  the  English  statute."^ 

*  Lewin  on  Trusts,  45;  Black  v.  Black,  4  Pick.  236. 
2  Scott  V.  Harris,  113  111.  447. 

*  Richards  v.  Richards,  9  Gray,  313;  Smith  v.  Bumham,  3  Sumn.  435. 
[Even  in  States  where  the  seventh  section  is  not  in  force.  Dover  v.  Rhea, 
108  N.  C.  88.] 

*  See  ante,  §  78,  note.    Bibb  v.  Hunter,  79  Ala.  351. 
5  Pinnock  v.  Clough,  17  Vt.  508. 

(a)  But  it  is  important  to  note  realty.    As  to  equitable  conversion, 

that  the  interest  of  the  cestui  is  not  see  infra,  §  448,  note, 
always  real  estate  when  the  trust  (b)  See  1   Ames  on  Trusts    (2d 

property    consists    temporarily    of  ed.)  176,  n. 
76 


CHAP.    III.]  STATUTE    OF    FRAUDS.  [§  81. 

And  Mr.  Justice  Story'  said,  that  "in  his  opinion,  there  was  no 
substantial  difference  between  the  Massachusetts  statute  of 
frauds"  (which  is  in  substance  the  same  as  the  statute  of  Ver- 
mont) "and  the  statute  of  29  Car.  II.  c.  3;  and  such  is  the 
conclusion  to  which  I  have  arri\'ed  upon  an  examination  of 
these  statutes."  ^  And  in  Wisconsin,  where  the  statute  is  the 
same  as  the  statutes  of  INIassachusetts  and  \'ermont,  it  was 
held  that  an  express  trust  need  not  be  declared  in  express  terms; 
that  it  is  sufficiently  declared  or  created  if  shown  by  any  proper 
written  evidence,  such  as  an  answer  to  a  bill  in  equity,  note, 
letter,  or  memorandum,  disclosing  facts  which  create  a  fiduciary 
relation."  In  New  York,  the  words  of  the  statute  were  that 
"  the  trust  should  be  created  or  declared  by  deed  or  conveyance 
in  writing."  In  relation  to  this  Mr.  Justice  Strong  said,  that 
"the  definition  of  the  term  conveyance  given  in  the  Revised 
Statutes  ^  comprehends  a  declaration  of  trust,  although  not 
under  seal,  as  it  is  an  instrument  by  which  the  title  to  such 
estate  may  be  affected  in  law  or  equity."  ^  In  another  case, 
Chief-Justice  Ruggles  said:  "The  statute  prescribes  no  par- 
ticular form  by  which  the  trust  is  to  be  created  or  declared. 
Under  our  former  statute,  in  relation  to  this  subject,  it  was 
only  necessary  that  the  trust  should  be  manifested  in  writing, 
and  therefore  letters  from  the  trustee  disclosing  the  trust  were 
sufficient;  such  is  the  law  of  England.^  Our  present  statute 
requires  that  the  trust  should  be  created  or  declared  by  deed 
or  conveyance  in  writing,  subscribed  by  the  party  creating 
or  declaring  the  trust; "  but  it  need  not  be  done  in  the  form  of  a 
grant.  A  declaration  of  trust  is  not  a  grant.  It  may  be  con- 
tained in  the  reciting  part  of  a  conve^'ance.  Such  a  recital  in 
an  indenture  is  a  solemn  declaration  of  the  existence  of  the  facts 
recited;  and  if  the  trustee  and  the  cestui  que  trust  are  parties 

1  Jenkins  v.  Eldredge,  3  Story,  294. 

2  Pratt  V.  Ayer,  2  Chand.  265  '  1  R.  S.  762,  §  38. 

*  Corse  V.  Leggett,  25  Barb.  394. 

*  Stat.  29  Car.  II,  c.  3,  §  7;  Forster  v.  Halo,  3  Ves.  Jr.  696. 

'  The  act  of  1860  now  makes  the  statute  of  New  York  conform  in  words 
to  the  statutes  of  other  States.    Cook  v.  Barr,  44  N.  Y.  158. 

77 


§  82.]  EXPRESS    TRUSTS,    ETC.  [cHAP.    III. 

to  the  conveyance,  the  trust  is  as  well  and  effectually  declared 
in  that  form  as  in  any  other."  ^  Upon  sound  reason,  then,  and 
upon  the  decided  cases,  it  would  seem  that  the  peculiar  form  of 
words  in  some  of  the  statutes  of  the  American  States  has  not 
altered  the  general  rule,  as  established  under  the  English 
statute;  and  that  the  same  evidence  would  be  generally  re- 
ceived in  the  United  States  to  establish  a  trust,  as  in 
England.^ 

§  82.  There  is  no  particular  formality  required  or  necessary 
in  the  creation  of  a  trust.^  (a)  All  that  is  required  is  written 
evidence  supplying  every  essential  detail  of  the  trust.^  In  New 
York,  a  trust  is  valid  if  the  intention  is  clear  to  create  a  trust 
to  accomplish  one  of  the  purposes  named  in  the  statute,^  whether 
it  is  stated  in  the  precise  words  of  the  statute  or  not.®    But 

1  Wright  V.  Douglass,  3  Seld.  569;  Cook  v.  Barr,  44  N.  Y.  158.  [But  see 
Pittman  v.  Pittman,  107  N.  C.  159.] 

2  Sheet's  Estate,  52  Penn.  St.  527;  Blodgett  v.  Hildreth,  103  Mass. 
486.  Mr.  Browne,  in  his  able  treatise  upon  the  Statute  of  Frauds,  cites 
the  case  of  Jaques  v.  HaU,  where  the  Supreme  Judicial  Court  of  Massa- 
chusetts, notwithstanding  the  words  of  the  Massachusetts  statute,  con- 
sidered an  entry  in  a  private  memorandum  book  of  the  trustee,  setting 
forth  clearlj'^  a  previous  transaction  by  which  he  had  become  trustee,  as  a 
satisfactory  declaration  of  trust.  There  was  other  evidence;  and,  as  the 
case  is  not  put  upon  this  ground,  in  the  printed  report,  3  Gray,  194,  the 
court  probably  chose  to  rest  the  decision  upon  other  grounds.  In  Titcomb 
V.  Morrill,  10  Allen,  15,  Mr.  Justice  Chapman  said  it  was  not  necessary  to 
decide  the  question.    See  Browne  on  Statute  of  Frauds,  §  104,  1st  ed. 

^  Tyler  v.  Tyler,  25  Brad.  (111.)  339,  quoting  the  text.  In  a  will  it  is 
sufficient  if  the  intent  is  clear.  Quinn  v.  Shields,  62  Iowa,  129;  [Gisbom 
V.  Charter  Oak  L.  Ins.  Co.,  142  U.  S.  326;  O'Rourke  v.  Beard,  151 
Mass.  9;  Mullins  v.  Mullins,  79  Hun,  421;  People  v.  Powers,  83  id.  449; 
Steinhardt  v.  Cunningham,  130  N.  Y.  292;  Cathcart  v.  Nelson's  Adm'r, 
70  Vt.  317.) 

*  Dyer's  App.,  107  Penn.  St.  446. 

M  R.  S.  728,  §  55.    [IV  Consol  Laws  (1909),  p.  3390,  §  96.1 

•  Morse  v.  Morse,  85  N.  Y.  53. 

(a)  An  express  trust  by  grant  can  323.  Such  a  trust  is  necessarily  ex- 
be  created  only  by  conveying  some  elusive  of  any  implied  trust.  May- 
estate  or  interest  to  the  intended  field  i;.  Forsyth,  164  111.  32;  Coleman 
trustee.    Nichols  v.  Emery,  109  Cal.  i'.  Parran,  43  W.  Va.  737. 

78 


CHAP.    III.]  STATUTE    OF    FRAUDS.  [§  82. 

trusts  not  authorized  by  the  statute  are  void.^  A  sealed  paper, 
delivered  with  the  deed  and  mentioned  in  the  deed  as  part  of  it, 
is  a  part  of  it,  even  though  the  instructions  were  that  the  sealed 
document  should  not  be  opened  until  after  the  death  of  the 
grantor.^  Any  agreement  or  contract  in  writing,  made  by  a 
person  having  the  power  of  disposal  over  property,  whereby 
such  person  agrees  or  directs  that  a  particular  parcel  of  property 
or  a  certain  fund  shall  be  held  or  dealt  with  in  a  particular 
manner  for  the  benefit  of  another,  in  a  court  of  equity  raises 
a  trust  in  favor  of  such  other  person  against  the  person  making 
such  agreement,  or  any  other  person  claiming  under  him  vol- 
untarily or  with  notice;  ^  and  the  statute  of  frauds  will  be 
satisfied  if  the  trust  can  be  manifested  or  proved  by  any  sub- 
sequent acknowledgment  by  the  trustee,  as  by  an  express 
declaration,^  or  any  memorandum  to  that  effect,^  or  by  a  letter 

>  Syracuse  S.  Bank  v.  Porter,  36  Hun,  168;  Follett  v.  Badeau,  26  id.  253. 

2  Van  Cott  V.  Prentice,  35  Hun,  322. 

'  See  §  122  and  cases  cited;  2  Spence,  Eq.  860;  Legard  v.  Hodges,  1  Ves. 
Jr.  478;  Baylies  v.  Peyton,  5  Allen,  488;  Taylor  v.  PowTial,  10  Leigh, 
183;  Currie  v.  White,  45  N.  Y.  822;  Pingre  v.  Coffin,  12  Gray,  288;  Cress- 
man's  App.,  42  Penn.  St.  147;  Reed  v.  Lukens,  44  id.  200;  Conway  v.  Kens- 
worthy,  21  Ark.  9;  Rahun  v.  Rahun,  15  La.  An.  471;  Rees  v.  Livingston,  41 
Penn.  St.  113;  Paul  v.  Fulton,  32  Miss.  110;  Seymour  v.  Freer,  8  Wall.  202; 
Price  V.  Reeves,  38  Cal.  457;  Waddingham  v.  Loker,  44  Mo.  132;  Giddings 
V.  Palmer,  107  Mass.  270;  Homer  v.  Homer,  107  id.  82;  Price  i-.  Minot,  107 
id.  61.  But  see  Kelley  v.  Babcock,  49  N.  Y.  32;  Ogden  v.  Larrabee,  57  111. 
389;  Lake  v.  Freer,  11  Brad.  (111.)  576;  Freer  v.  Lake,  115  111.  662;  Jones  v. 
Lloyd,  117  id.  597;  Tichenell  v.  Jackson,  26  W.  Va.  460;  ^Vliitcomb  v.  Cardell, 
45  Vt.  24;  Pinson  v.  McGehee,  44  Miss.  229;  Conway  v.  Cutting,  51  N.  H. 
408;  Jones  v.  Wilson,  60  Ala.  332.  [Carter  v.  Gibson,  29  Neb.  324; 
McCreary  v.  Gewinner,  103  Ga.  528,  535;  Smith's  Estate,  144  Pa.  St.  428; 
Cathcart  v.  Nelson's  Adm'r,  70  Vt.  317;  Christian  v.  Highlands,  32  Ind. 
App.  104.]  An  agreement  to  support  the  grantor  as  a  substantial  part 
of  the  consideration  of  the  conveyance  creates  a  secret  triist  void 
against  existing  creditors  not  otherwise  having  a  sufficient  remedy.  Funk 
V.  Lawson,  12  Brad.  (111.)  229. 

*  Lewin  on  Trusts,  62;  Ambrose  v.  Ambrose,  1  P.  Wms.  321;  Crop  t>. 
Norton,  10  Mod.  233;  Willard  v.  Willard,  56  Penn.  St.  119;  Knox  v.  Mo- 
Farren,  4  Col.  586;  Phillips  v.  South  Park  Com'rs,  119  111.  640,  quoting  the 
text.  [Knowlton  v.  Atkins,  134  N.  Y.  313;  Carter  v.  Gibson,  29  Neb.  324; 
Mc.Vuley's  Estate,  184  Pa.  St.  124.] 

'  Bellamy  v.  Burrow,  Cas.  tem.  Talb.  97;  Fisher  v.  Fields,  10  Johns. 

79 


§  82.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

under  his  hand/  or  by  his  answer  in  chancery,^  or  by  his  affi- 
davit,^ or  by  a  recital  in  a  bond  ^  or  deed,^  or  by  a  pamphlet  ® 
written  by  the  trustees,  or  by  an  entry  in  a  bank-deposit  book;  "^ 
in  short,  by  any  writing  in  which  the  fiduciary  relation  between 
the  parties  and  its  terms  can  be  clearly  read.^     And  if  there  is 

495;  Urann  v.  Coates,  109  Mass.  581;  Brooke's  App.  109  Penn.  St.  188. 
[Ranney  v.  Byers,  219  Pa.  St.  332.] 

'  Johnson  v.  Deloney,  35  Tex.  42;  Phelps  v.  Seeley,  22  Grat.  573;  Mon- 
tague V.  Hayes,  10  Gray,  609;  Kingsbury  v.  Burnside,  58  111.  310;  Forster 
V.  Hale,  3  Ves.  Jr.  696;  5  Ves.  308;  Morton  v.  Tewart,  2  Yo.  &  Col.  Ch.  67; 
Bentley  v.  Mackay,  15  Beav.  12;  Childers  v.  Childers,  1  De  G.  &  J.  482; 
Smith  V.  WUkinson,  3  Ves.  705;  O'Hara  v.  O'Neill,  7  Bro.  P.  C.  227;  Gard- 
ner V.  Rowe,  2  S.  &  S.  346;  Crook  v.  Booking,  2  Vem.  106;  Steere  v.  Steere, 
5  Johns.  Ch.  1.  But  this  case  was  before  the  statute.  It  is  not  necessary 
that  the  trust  and  its  terms  should  be  found  in  one  letter;  it  is  sufficient  if 
they  appear  from  any  number  of  letters  or  writings.  McCandless  v.  Warner, 
26  W.  Va.  754;  Loring!;.  Palmer,  118  U.  S.  321,  construing  Michigan  law. 
(Wiggs  V.  Winn,  127  Ala.  621;  Gates  v.  Paul,  117  Wis.  170;  Ransdel  v. 
Moore,  153  Ind.  393;  Copeland  v.  Summers,  138  Ind.  219;  Stratton  v. 
Edwards,  174  Mass.  374.] 

'  Hampton  v.  Spencer,  2  Vem.  288;  Nab  v.  Nab,  10  Mod.  404;  1  Eq. 
Cas.  Ab.  464;  Gil.  Eq.  146;  Cottington  v.  Fletcher,  2  Atk.  155;  Ryall  v. 
Ryall,  1  Atk.  59;  Wilson  v.  Dent,  3  Sim.  385;  Butler  v.  Portarlington,  1 
Conn.  &  Laws.  1;  1  Dr.  &  W.  20;  McCubbin  v.  Cromwell,  7  Gill  &  J.  175; 
Jones  V.  Slubey,  5  Har.  &  S.  372.  [Garnsey  v.  Gothard,  90  Cal.  603;  Schu- 
macher V.  Draeger,  137  Wis.  618.] 

^  Barkworth  v.  Young,  4  Drew.  1;  Pinney  v.  Fellows,  15  Vt.  525.  [Kel- 
logg V.  Peddicord,  181  111.  22  (deposition).] 

*  Moorcroft  v.  Dowding,  2  P.  Wms.  314;  Wright  v.  Douglass,  3  Seld. 
564;  Gomez  v.  Traders'  Bank,  4  Sandf.  102. 

5  Deg  V.  Deg,  2  P.  Wms.  412;  Selden's  App.  31  Conn.  548;  Wright 
V.  Douglass,  3  Seld.  564,  reversing  s.  c.  10  Barb.  97. 
"  Barren  v.  Joy,  16  Mass.  221. 
^  Barker  v.  Frye,  75  Maine,  29. 

*  Baylies  v.  Payson,  5  Allen,  473  ;  Plymouth  v.  Hickman,  2  Vern.  167; 
Blake  v.  Blake,  2  Bro.  P.  C.  250;  Dale  v.  Hamilton,  2  Phill.  266;  Orleans 
V.  Chatham,  2  Pick.  29;  Hardin  v.  Baird,  6  Litt.  346;  Graham  v.  Lambert, 
5  Humph.  595;  Gome  v.  Tradesman's  Bank,  4  Sand.  106;  Bragg  v.  Paulk, 
42  Maine,  502;  Unitarian  Society  v.  Woodbury,  14  id.  281;  McCubbin  v. 
Cromwell,  7  Gill  &  J.  157;  Podmore  v.  Gunning,  7  Sim.  655;  Fisher  v. 
Fields,  10  Johns.  Ch.  505;  Murray  v.  Glass,  23  L.  J.  Ch.  126;  Paterson 
V.  Murphy,  17  Jur.  298;  Raybold  v.  Raybold,  20  Penn.  St.  308;  Barron  f. 
Barron,  24  Vt.  375;  Steere  v.  Steere,  5  id.  1;  Cuyler  v.  Bradt,  Caines'  Cas. 
326;  Packard  v.  Putnam,  57  N.  H.  43.  [Patton  v.  Chamberlain,  44  Mich. 
5;  Eipper  v.  Benner,  113  id.  75;  Hutchins  v.  Van  Vechten,  140  N.  Y.  115; 

80 


CHAP.    III.]  STATUTE    OF    FRAUDS.  [§  82. 

any  competent  written  evidence  that  the  person  holding  the 
legal  title  is  only  a  trustee,  that  will  open  the  door  for  the  ad- 
mission of  parol  evidence  to  explain  the  position  of  the  parties,' 
as  where  there  are  entries  in  the  books  of  the  grantee  of  pay- 
ments made  by  him  to  or  on  account  of  the  grantor,  which  pay- 
ments were  consistent  only  with  the  fact  that  the  grantee  took  in 
trust,  he  was  decreed  to  be  a  trustee."  (a)  Nor  is  it  necessary 
that  the  letters,  memoranda,  or  recitals  should  be  addressed  to 
the  cestui  que  trust,  or  should  have  been  intended  when  made 
to  be  evidence  of  the  trust.'^  (6)    A  deed  of  gift  to  the  husband, 

Tusch  V.  German  S.  Bank,  46  N.  Y.  S.  422;  Cathcart  v.  Nelson,  70  Vt.  317; 
McAuley's  Estate,  184  Pa.  St.  124;  Hiss  v.  Hiss,  228  111.  414.) 

'  Cripps  V.  Lee,  4  Bro.  Ch.  472;  Hollinshed  v.  Allen,  17  Penn.  St.  275; 
Prevost  V.  Gratz,  1  Pet.  C.  C.  366;  Morton  v.  Tewart,  2  Yo.  &  Coll.  Ch. 
67-77;  Hutchins  v.  Lee,  1  Atk.  447;  Corse  v.  Leggett,  25  Barb.  389.  But 
see  Homer  v.  Homer,  107  Mass.  82. 

■'  Ibid. 

'  Forster  v.  Hale,  5  Ves.  308;  Hutchinson  v.  Tindall,  2  Green,  Ch.  357; 
Barrell  v.  Joy,  16  Mass.  221;  Welford  v.  Beazeley,  3  Atk.  503;  Browne  on 
Statute  of  Frauds,  §  99;  Furman  v.  Fisher,  4  Cold.  626;  Urann  v.  Coates, 
109  Mass.  581.  [Stratton  v.  Edwards,  174  Mass.  374;  Aller  v.  Crouter,  64 
N.  J.  Eq.  381;  Whetsler  v.  Sprague,  224  111.  461,  466.]  In  Steere  v.  Steere, 
5  Johns.  Ch.  1,  Mr.  Chancellor  Kent  recognized  and  approved  the  general 
proposition  that  trusts  could  be  proved  by  letters  signed  by  the  party;  but 
in  showing  that  the  letters  in  that  particular  case  were  insufficient  to  prove 
a  trust,  he  took  notice  of  the  fact  that  they  were  not  addressed  to  the  cestui 
que  trust,  and  seemed  to  intimate  that  it  was  necessary  that  letters  should 
be  so  addressed  in  order  to  manifest  the  trust.    If  the  eminent  chancellor 

(a)  The  trustee  cannot  change  the  been  destroyed  or  lost  or  the  person 
terms  of  a  trust  by  a  subsequent  having  the  custody  of  it  refuses  to 
declaration.  Burling  v.  Newlands,  produce  it,  its  terms  may  be  proved 
112  Cal.  476.  Thus  where  a  trust  by  parol  evidence,  but  the  oral 
results  by  operation  of  law  the  holder  evidence  must  go  to  the  extent  of 
of  the  legal  title  cannot  by  a  written  reproducing  theessential  termsof  the 
declaration  that  he  holds  the  land  trust  as  they  were  expressed  in  the 
upon  a  trust  created  by  parol,  en-  writing.  Hiss  v.  Hiss,  22S  111.  414. 
graft  limitations  upon  the  resulting  (A  case  where  the  tenns  of  the  trust 
trust  without  the  consent  of  the  were  recited  in  a  will  which  was  after- 
beneficial  owner.  Adams  v.  Carey,  wards  revoked  and  dcstroj^ed.) 
53  N.  J.  Eq.  334.  See  also  Griffith  See  also  McCarty  i;.  Kyle,  4  Coldw. 
V.  Eisenberg,  215  Pa.  St.  182.  (Tenn.)  348. 

If   the  writing   relied  upon   has  (6)  Under  circuinstancea  similar 

VOL.  I.  —6  81 


§82.] 


EXPRESS    TRUSTS,    ETC. 


[chap.    III. 


as  "an  advancement  "  to  the  wife,  will  create  a  trust  for  the 
wife.  It  is  not  necessary  that  the  word  "  trust  "  or  "  trustee  " 
should  be  used.*  (a)    The  trust  thus  proved,  however  late  the 


intended  to  lay  down  such  a  rule,  it  would  seem  to  be  effectually  overthrown 
by  the  well-considered  cases  cited  above. 

'  Cresswell's  Adm'r  v.  Jones,  68  Ala.  420.  [Packard  v.  O.  C.  R.  Co.,  168 
Mass.  92;  Chadwick  v.  Chad  wick,  59  Mich.  87;  Mersereau  v.  Bennet,  108 
N.  Y.  S.  868  (App.  Div.);  Ranney  v.  Byers,  219  Pa.  St.  332;  infra,  §  225,  n.] 


to  those  where  a  court  of  equity  will 
decree  specific  performance  of  an 
oral  contract  to  convey  land,  a  parol 
trust  in  land  will  sometimes  be  en- 
forced although  there  is  no  writing 
creating  or  manifesting  it.  Thus 
where  the  beneficiary  has  been  let 
into  possession  and  has  made  valu- 
able improvements  of  a  permanent 
nature,  the  trust  may  be  enforced 
on  the  theory  that  the  owner  of  the 
land  has  estopped  himself  from 
making  use  of  the  statute  of  frauds 
Guynn  v.  McCauley,  32  Ark.  97 
Haines  v.  Haines,  4  Md.  Ch.  133 
Wylie  V.  Charlton,  43  Neb.  840 
Dunn  V.  Berkshire,  175  III.  243 
But  see  Pillsbury-Washbum  Co.  v 
Kistler,  53  Minn.  123. 

But  the  mere  payment  of  a  money 
consideration  is  not  usually  sufficient, 
and  the  improvements  must  be  of 
a  substantial  and  lasting  nature, 
such  as  would  not  have  been  made 
except  in  reliance  on  the  parol  trust 
or  agreement  to  convey,  Cooley  v. 
Lobdell,  153  N.  Y.  596;  Caldwell  v. 
Wilhams,  1  BaUey's  Eq.  (S.  C.) 
175.  See  Bodwell  v.  Nutter,  63 
N.  H.  446;  and  they  must  appear 
to  have  been  made  in  reliance  upon 
the  parol  trust  or  parol  agreement  to 
convey.  Chilvers  v.  Race,  196  111. 
71.  In  other  words  the  circum- 
stances must  be  such  that  to  allow 
a  plea  of  the  statute  of  frauds  to  be 

82 


successful  would  be  to  allow  that 
statute  to  be  used  as  a  means  of 
committing  a  fraud. 

(a)  Thus  a  trust  has  been  held 
to  have  been  established  where  the 
owner  of  personal  property  deUvered 
possession  to  another  with  power  to 
sell,  to  receive  and  invest  the  pro- 
ceeds and  to  exercise  the  usual  acts 
of  ownership,  with  specific  direc- 
tions how  the  property  and  its 
income  were  to  be  disposed  of,  al- 
though the  trustee  was  described 
as  an  attorney.  Mersereau  v.  Ben- 
net,  108  N.  Y.  S.  868  (App.  Div). 
See  Offutt  V.  Divine's  Ex'r,  49  S.  W. 
1065  (Ky.  1899),  to  the  same  effect; 
Boreing  v.  Faris,  127  Ky.  67  (where 
a  bequest  was  made  to  certain  per- 
sons, described  as  a  "committee"). 
When  no  trust  is  declared  or  bene- 
ficiary named,  and  the  conveyance 
is  for  a  valuable  consideration,  it 
has  been  held  that  description  of  the 
grantees  as  "trustees"  therein  is  a 
surplusage,  and  does  not  show  a 
trust.  Andrews  v.  Atlanta  R.  E. 
Co.,  92  Ga.  260;  Trammell  v.  In- 
man,  115  Ga.  874;  Ruat;.  Watson,  13 
S.  D.  453.  But  the  description  of  a 
grantee  as  trustee  is  notice  of  any 
trust  properly  declared  in  another 
instrument.  Stemfels  v.  Watson, 
139  Fed.  505;  Snyder  v.  CoUier, 
123  N.  W.  1023  (Neb.  1909).  And 
merely  describing  an  agent  or  man* 


CHAP.    111.]  DEPOSITS    IN    SAVINGS    BANKS.  [§  82. 

proof,  will  relate  back  to  its  creation;  as  where  a  lease  was 
granted  to  A.,  who  afterwards  became  a  bankrupt,  and  tJien 
executed  a  declaration  of  trust  in  favor  of  B.,  the  jury  having 
found  upon  an  issue  out  of  chancery  that  A.'s  name  was  used 
in  good  faith  in  the  lease  as  the  trustee  of  B.,  it  was  held  that 
the  assignees  of  A.  took  nothing  in  the  property.*  (a)  But  it 
must  clearly  appear  that  the  parties  intended  a  trust  by  the 
transaction,  and  parol  evidence  is  competent  to  explain  receipts 
and  other  papers  connected  with  the  case  which  may  be  explained 
by  parol  in  other  cases.^  A  mere  declaration  of  motive,  as  a 
grant  to  A.  in  order  that  he  may  maintain  his  children,  will  not 
create  a  trust;  ^  nor  will  a  mere  request  of  an  owner  to  his  heirs 
to  convey  land  to  a  person  named  in  the  letter  expressing  his 
wish.^  In  case  of  a  deposit  in  bank  in  trust  for  another  there 
must  be  an  intent  to  pass  the  beneficial  interest  during  the  life 
of  the  donor,  and  not  merely  a  testamentary  intent  that  the 
person  named  as  cestui  shall  have  the  money  at  the  decease  of 
the  donor,  who  retains  complete  control  of  the  fund  during  his 

1  Gardner  v.  Rowe,  2  S.  &  S.  346;  5  Russ.  258;  Plymouth  v.  Hickman, 
2  Vem.  167;  Ambrose  v.  Ambrose,  1  P.  Wms.  322;  Wilson  v.  Dent,  3  Sim. 
385;  Smith  t;.  Howell,  3  Stockt.  349;  Ownes  v.  Ownes,  23  N.  J.  Ch.  60;  Mc- 
Govem  v.  Knox,  21  Ohio  St.  .547;  Malin  v.  Malin,  1  Wend.  625;  Steere 
1).  Steere,  5  Johns.  Ch.  1;  Jackson  v.  Moore,  6  Cow.  706;  Rcid  v.  Fitch,  11 
Barb.  399;  Reggs  v.  Swann,  6  Jones  Eq.  115;  Noble  v.  Morris,  24  Ind. 
478;  Sime  v.  Howard,  4  Nev.  473;  Reid  v.  Reid,  12  Rich.  Eq.  213;  McLaurie 
V.  Partlow,  53  111.  340.  [See  also  Stratton  v.  Edwards,  174  Mass.  374; 
Blaha  v.  Borgman,  124  N.  W.  1047  (W^is.  1910).] 

2  Smith  V.  Tome,  59  Penn.  St.  158;  Hays  v.  Quay,  id.  263. 

'  Bryan  v.  Howland,  98  111.  625.  [Randall  v.  Randall,  135  III.  398; 
Seamonds  v.  Hodge,  36  W.  Va.  304.  See  St.  James  v.  Bagley,  138  N.  C. 
384;  Adams  v.  Lopdell,  25  L.  R.  Ir.  311;  Matter  of  Crane,  12  App.  Div. 
(N.  Y.)  271.     On  this  point  see  more  especially  §  117  and  note.] 

*  Preston  v.  Casner,  104  111.  262. 

ager  as  trustee  does  not  make  him  seized  of  the  property,  did  not  shut 

one.     Bank  of  Visalia  v.  Dillonwood  out  his  wife's  right  of  dower.     See 

Co.,  148  Cal.  18,  25.  Bartlett  v.  Tinsley,   175  Mo.  319. 

(a)  But   in  Pruitt  v.  Pruitt,    57  See  contra, Oldham  v.  Sale,  1  B.  Mon. 

S.  C.  155,  it  was  held  that  a  subse-  76;  Johnston  v.  Jickling,  141  Iowa, 

quent  declaration  in  writing,  made  444. 
by  the  trustee  after  he  had  become 

83 


§82.] 


EXPRESS    TRUSTS,    ETC. 


[chap.    III. 


life.^  The  general  rule  is  that  a  deposit  of  money  in  the  name 
of  the  depositor,  in  trust  for  another,  transfers  the  title  to  the 
latter.'  (a)    Where  a  savings-bank  depositor  "  in  trust  "  kept 

'  Nutt  V.  Morse,  142  Masa.  1,  3;  Waynesburg  College's  App.,  Ill  Penn. 
St.  130;  Smith  v.  Speer,  34  N.  J.  Eq.  336. 
2  Scott  V.  Harbeck,  49  Hun,  292. 


(a)  Since  the  text  was  written 
there  have  been  many  decisions  in- 
volving the  legal  effect  of  such 
deposits,  and  the  courts  of  different 
jurisdictions  have  differed  widely 
upon  some  of  the  questions  involved. 
The  conflict  of  authority  hinges 
chiefly,  first  upon  the  weight  which 
should  be  given  to  the  mere  form  of 
deposit  in  showing  the  depositor's 
intention  to  create  a  trust;  and, 
second,  upon  the  sufficiency  of  the 
deposit  in  this  form  as  a  declaration 
of  trust  when  it  has  not  been  com- 
municated to  the  person  named  as 
beneficiary. 

It  is  necessary  to  bear  in  mind,  in 
considering  these  cases,  that  the 
question  is  not  whether  the  bank  is 
trustee  but  whether  the  depositor 
is  trustee  of  the  chose  in  action  of 
which  the  bank  book  or  other  certi- 
ficate of  deposit  is  the  evidence. 
The  trust  res  is  this  chose  in  action, 
and  in  practice  the  depositor  who 
retains  possession  of  the  bank  book 
has  control  of  the  deposit.  Sherman 
V.  New  Bedford  Sav.  Bank,  138 
Mass.  581;  Ide  v.  Pierce,  134  Mass. 
260. 

In  all  jurisdictions  it  is  law,  that 
a  deposit  in  a  savings  bank  in  the 
name  of  the  depositor  as  trustee  for 
another  is  a  sufficient  voluntary  dec- 
laration of  trust  if  the  depositor  ac- 
tually intended  to  make  himself 
trustee  and  has  communicated  the 
declaration    to    the    beneficiary   or 

84 


somebody  representing  him.  Cases 
cited  infra  this  note.  It  is  not 
inconsistent  with  the  trust  that  the 
depositor  retains  the  bank  book  and 
the  control  of  the  deposit.  Sayre  v. 
Weil,  94  Ala.  466;  Booth  v.  Oakland 
Bank,  122  Cal.  19.  Gardner  v.  Mer- 
ritt,  32  Md.  78;  Milholland  v. 
Whalen,  89  Md.  212;  Harris  Bank- 
ing Co.  V.  Miller,  190  Mo.  640;  1 
L.  R.  A.  (n.  s.)  790;  Smith  v.  Sav. 
Bank,  64  N.  H.  228;  Farieigh  v.  Cad- 
man,  159  N.  Y.  169;  Merigan  v. 
McGonigle  205  Pa.  St.  321 ;  Ray  v. 
Simmons,  11  R.  I.  266;  Atkinson, 
Petitioner,  16  R.I.  413;  Conn.  River 
Sav.  Bank  v.  Adm'r  of  Albee,  64  Vt. 
571.  It  is  not  fatal  to  the  validity 
and  completeness  of  the  trust,  that 
the  depositor  has  reserved  to  himself 
the  absolute  right  to  the  interest 
during  his  life.  Savings  Inst.  v. 
Titcomb,  96  Me.  62;  Smith  v.  Sav. 
Bank,  64  N.  H.  231.  The  reservation 
of  the  right  to  use  all  or  part  of  the 
principal  for  his  own  benefit  is  not 
in  itself  fatal  to  a  complete  and 
valid  trust  if  the  intention  is  clearly 
established.  Booth  v.  Oakland  Sav. 
Bank,  122  Cal.  19;  Hoboken  Bank 
V.  Schwoon,  62  N.  J.  Eq.  503 
(semble).  But  this  circumstance 
usually  has  a  strong  tendency  to 
show  that  a  testamentary  gift  to 
take  effect  on  the  depositor's  death, 
rather  than  a  complete  trust,  was 
intended.  The  same  seems  to  be 
true,  even  to  a  greater  extent,  when 


CHAP.    III.] 


DKPOSITS    IN    SAVINGS    BANKS. 


[§82. 


the  book,  hut  hcfore  his  death  toM  the  beneficiary  in  substance, 
"  That  money  I  put  in  the  savings  bank  for  you,  is  yours,"  a 


the  intention  is  found  to  have  been 
to  reserve  a  power  of  complete 
revocation.  See  Bartlett  v.  Reming- 
ton, 59  N.  H.  364;  Fellows  v.  Fel- 
lows, 69  N.  H.  339. 

In  all  jurisdictions  it  is  well  estab- 
lished that  a  voluntary  deposit  of 
one's  own  money  nominally  in  trust 
for  another  is  not  conclusive  upon 
the  depositor.  Since  the  trust,  if 
there  is  one,  is  wholly  voluntary,  it 
will  not  be  declared  created  against 
the  actual  intention  of  the  depositor, 
and  it  is  open  to  him  or  his  legal 
representatives  to  show  that  in  fact 
he  had  no  intention  of  creating  a 
trust  or  of  parting  with  his  owner- 
ship of  the  deposit.  The  courts 
recognize  that  the  modern  practice 
of  making  deposits  in  this  form  for 
the  purpose  of  evading  regulations 
limiting  the  size  of  any  one  account 
has  rendered  words  of  trust  in  a 
deposit  book  equivocal  in  meaning. 
The  form  of  the  account,  therefore, 
is  never  more  than  evidence  of  an 
intention  to  create  a  trust,  and  may 
be  controlled  by  other  declarations 
or  by  circumstances  which  show 
that  there  was  no  such  intention. 
Burton  v.  Bridgeport  Sav.  Bank,  .52 
Conn.  398;  Bath  Sav.  Inst.  v.  Fogg, 
101  Me.  188;  Taylor  v.  Henry,  48 
Md.  550;  Milholland  v.  Whalen,  89 
Md.  212;  Gerrish  v.  New  Bedford 
Inst,  for  Sav.,  128  Mass.  1.59;  Park- 
man  V.  Suffolk  Sav.  Bank,  151  Mass. 
218;  Scrivens  v.  North  Easton 
Sav.  Bank,  166  Mass.  255;  Bartlett 
V.  Remington,  59  N.  H.  364;  Fel- 
lows V.  Fellows,  69  N.  H.  339;  Smith 
V.  Speer,  34  N.  J.  Eq.  336;  Matter 
of  Totten,  179  N.  Y.  112;  Cunning- 
ham V.  Davenport,  147  N.  Y.  43; 


Garvey  p.  Clifford,  99  X.  Y.  S.  555, 
114  App.  Div.  193;  Lattan  v.  Van 
Ne^,  107  App.  Div.  (N.  Y.)  393; 
Lee  V.  Kennedy,  54  N.  Y.  S.  155; 
Gaffney's  Estate,  146  Pa.  St.  49; 
Merigan  v.  McGonigle,  205  Pa.  St. 
321;  People's  Sav.  Bank  v.  Webb, 
21  R.  I.  218;  Conn.  River  Sav.  Bank 
V.  Adm'r  of  Albee,  64  Vt.  571.  As 
to  the  effect  of  subsequent  declar- 
ations by  the  depositor,  see  Tierncy 
V.  Fitzpatrick,  195  N.  Y.  433. 

The  decisions  of  Massachusetts 
and  New  York,  which  States  seem 
to  have  had  most  frequent  occasion 
to  deal  with  this  question,  show  a 
conflict  of  authority  as  to  the  im- 
portance of  giving  notice  of  the 
deposit  to  the  beneficiary.  In 
Massachusetts,  notice  to  the  bene- 
ficiary, or  to  somebody  who  may 
be  said  to  represent  him,  is  not 
only  important  as  e\'idence  of  the 
depositor's  intention  to  create  a 
trust,  but  is  an  essential  part  of  the 
declaration  of  trust.  It  seems  to  bo 
well  settled  in  Massachusetts,  that, 
however  clear  the  intention  of  the 
depositor  to  make  himself  a  volun- 
tary trustee,  having  himself  described 
as  trustee  in  the  deposit  book,  and 
on  the  books  of  the  bank  is  not  a 
declaration  of  trust,  unless  com- 
mimicated  by  him,  or  with  his  con- 
sent, to  the  beneficiarj-  or  somebody 
who  can  be  said  to  represent  him. 
The  fact  of  the  deposit  in  form  of  a 
trust  shows  no  more  than  an  in- 
choate purpose  which  he  may  after- 
wards conclude  not  to  carry  out. 
As  was  stated  by  Holmes,  C.  J.,  in 
Cleveland  v.  Hampden  Sav.  Bank, 
182  Mass.  110,  "An  owner  of  prop- 
erty does  not  lose  it  by  using  words 

85 


§82. 


EXPRESS    TRUSTS,  ETC. 


[chap.  III. 


finding  that  there  was  a  perfected  gift  was  justified.^     The 
question  is,  Do  the  facts  show  an  intent  to  create  a  present 

1  Alger  V.  North  End  Savings  Bank,  146  Mass.  418.  See  Mabie  v.  Bailey, 
95  N.  Y.  206,  and  Boone  v.  Citizens  Bank,  84  N.  Y.  83.  At  the  death  of 
the  trustee  the  trust  goes  to  her  executor  or  administrator,  and  in  the  ab- 
sence of  notice  from  the  beneficiary  to  the  contrary,  he  may  pay  the  money 
to  said  representative.    [See  note  a.] 


of  gift  or  trust  concerning  it  in  soli- 
tude, or  with  the  knowledge  of  an- 
other not  assuming  to  represent  an 
adverse  interest."  Noyes  v.  Inst, 
for  Sav.,  164  Mass.  583;  Welch  v. 
Henshaw,  170  Mass.  409;  Scrivens  v. 
North  Easton  Sav.  Bank,  166  Mass. 
255;  Alger  v.  North  End  Sav.  Bank, 
146  Mass.  418;  Sherman  v.  New 
Bedford  Sav.  Bank,  138  Mass.  581. 
See  also  Boynton  v.  Gale,  194  Mass. 
320;  Henchey  v.  Henchey,  167  Mass. 
77;  Miller  v.  Clark,  40  Fed.  15.  But 
see  Gerrish  v.  New  Bedford  Inst, 
for  Sav.,  128  Mass.  159. 

In  New  York  such  a  deposit 
without  notice  to  the  beneficiary 
seems  not  to  create  a  complete  trust 
without  other  evidence  of  inten- 
tion, but  the  courts  take  as  sufficient 
additional  evidence  of  intention, 
tke  fact  that  the  depositor  allows 
the  deposit  to  remain  in  this  form 
until  his  death.  In  Matter  of  Tot- 
ten,  179  N.  Y.  112,  it  is  laid  dowTi 
as  law  in  New  York,  that  such  a 
deposit  created  "a  tentative  trust 
merely,  revocable  at  will,  until  the 
depositor  dies  or  completes  the  gift 
by  some  unequivocal  act  or  declar- 
ation, such  as  delivery  of  the  pass 
book  or  notice  to  the  beneficiary. 
In  case  the  depositor  dies  before  the 
beneficiary  without  revocation,  the 
presumption  arises  that  an  absolute 
trust  was  created  as  to  the  balance 
on  band  at  the  death  of  the  depos- 
itor."    In   later   decisions   by   the 

86 


Appellate  Division  of  the  Supreme 
Court  it  has  been  held  that,  if  the 
person  named  as  beneficiary  dies 
before  the  depositor,  the  incom- 
plete or  "tentative"  trust  comes 
to  an  end  if  there  is  no  additional 
evidence  to  keep  it  alive,  so  that  the 
subsequent  death  of  the  depositor 
without  having  made  a  change  in 
the  form  of  the  account  does  not 
vest  any  interest  in  the  fund  in  the 
representatives  of  the  beneficiary. 
Matter  of  U.  S.  Trust  Co.,  102  N.  Y. 
S.  271,  117  App.  Div.  178;  Gar\^ey  v. 
Clifford,  99  N.  Y.  S.  555,  114  App. 
Div.  193;  In  re  Duffy,  111  N.  Y. 
S.  77.  The  effect  of  these  decisions 
seems  to  be  that  the  so-called  ten- 
tative trust  is  no  trust  at  all  until 
some  further  act  or  until  death  of 
the  depositor.  If  the  trust  does  not 
become  complete  before  the  death 
of  the  depositor  and  then  includes 
only  what  is  left  of  the  fund,  it  seems 
to  be  no  more  than  a  testamentary 
disposition.  For  a  different  inter- 
pretation of  the  word  "tentative" 
as  used  in  Matter  of  Totten,  see 
dissenting  opinion  of  Ingraham,  J., 
n  Matter  of  U.  S.  Trust  Co.,  102 
N.  Y.  S.  271,  117  App.  Div.  178. 
In  New  York  a  delivery  of  the  pass 
book  to  the  beneficiary  completes 
the  gift  of  the  beneficial  interest 
and  makes  the  trust  irrevocable  un- 
less a  contrary  intention  is  shown. 
Matter  of  Davis,  119  App.  Div.  35. 
And  notifying  the  beneficiary  of  the 


CHAP.   III.] 


DEPOSITS    IN    SAVINGS    BANKS. 


[§82. 


trust?    And  the  facts  that  the  grantor  drew  interest  on  the  de- 
posit, or  offered  to  loan  the  money  after  the  deposit  was  made. 


deposit  ia  evidence  of  an  intention 
to  create  a  trust,  but  is  not  conclu- 
sive. Tiemey  v.  Fitzpatrick,  107 
N.    Y.    S.   527. 

Before  the  decision  in  Matter  of 
Totten  there  was  a  conflict  among 
the  different  Appellate  Divisions 
as  to  the  effect  of  the  mere  form 
of  deposit  "in  trust"  for  another; 
the  majority  of  the  decisions  held 
that  a  deposit  in  this  form  created 
an  irrevocable  trust  in  the  absence 
of  evidence  to  show  a  contrary 
intention.  Bishop  v.  Seaman's  Bank, 
33  App.  Div.  181 ;  Jenkins  v.  Baker, 
77  App.  Div.  509;  Robertson  v. 
McCarty,  54  App.  Div.  103;  Marsh 
i;.  Keogh,  82  App.  Div.  503.  Mat- 
ter of  Totten  has  settled  the  law  of 
New  York  to  the  contrary,  and 
more  in  accord  with  the  probable 
intention  of  the  depositor,  for  usu- 
ally a  person  depositing  in  this  way, 
even  if  intending  a  trust  or  gift  of 
the  deposit,  means  to  retain  the 
right  to  the  interest  and  so  much  of 
the  principal  as  he  sees  fit  to  draw 
out. 

The  majority  of  decisions  in  other 
jurisdictions  have  followed  the  New 
York  rule  in  holding  that  notice  to  the 
beneficiary  is  not  essential  to  the 
sufficiency  of  the  declaration.  Sayre 
V.  Weil,  94  Ala.  466;  MilhoUand  v. 
Whalen,  89  Md.  212;  Littig  v.  Mt. 
Calvary  Church,  101  Md.  494; 
Merigan  v.  McGonigle,  205  Pa.  St. 
321;  Gaffney's  Estate,  146  Pa.  St. 
49;  Conn.  River  Sav.  Bank  v. 
Adm'rof  Albee,  64Vt.  571.  See  also 
Savings  Inst.  v.  Hathom,  88  Me. 
122.  Their  tendency  seems  to  go 
even  beyond  the  present  New  York 
rule  as  laid  down  in  the  more  recent 


case  of  Matter  of  Totten,  and  to 
hold  that  words  of  trust  in  the  deposit 
book  unexplained  by  evidence  of  a 
contrary  intention  create  an  irrevo- 
cable trust  of  the  deposit. 

The  decisions  in  Connecticut, 
Iowa,  New  Hampshire  and  Rhode 
Island  seem  to  favor  the  Massachu- 
setts view,  but  they  antedate  Matter 
of  Totten.  Burton  v.  Bridgeport 
Sav.  Bank,  52  Conn.  398;  Casteel  v. 
Flint,  112  Iowa,  92;  Bartlett  v. 
Remington,  59  N.  H.  364;  Marcy 
V.  Amazeen,  61  N.  H.  131;  People's 
Sav.  Bank  v.  Webb,  21  R.  I.  218; 
Re  Atkinson,  16  R.  I.  413;  Provi- 
dence Inst.  V.  Carpenter,  18  R.  I. 
287.  See  also  Bath  Sav.  Inst.  v. 
Fogg,  101  Me.  188;  Norway  Sav. 
Bank  v.  Merriam,  88  Me.  146. 
(Compare  Savings  Inst.  v.  Hathom, 
88  Me.  122.) 

If  a  trust  of  a  savings-bank  de- 
posit has  been  properly  declared 
so  that  it  has  become  a  complete 
trust,  it  is  as  binding  on  the  de- 
positor as  any  other  form  of  trust, 
and  he  has  no  implied  power  to 
revoke  it.  Sayre  v.  Weil,  94  Ala. 
466;  Kerrigan  v.  Rautigan,  43  Conn. 
17;  Minor  v.  Rogers,  40  Conn.  512; 
Gardner  v.  Merritt,  32  Md.  78;  Re 
Atkinson,  16  R.  I.  413. 

In  cases  of  this  kind  it  is  fre- 
quently a  close  question  of  fact 
whether  the  intention  of  the  de- 
positor was  to  make  a  present  gift 
of  a  beneficial  interest  in  the  fund 
or  a  gift  to  take  effect  at  his  death 
upon  whatever  of  the  deposit  then 
remains.  If  the  latter  was  his  in- 
tention, it  would  seem  to  be  an 
invalid  attempt  at  a  testamentary 
disposition.       Main's    Appeal,    73 

87 


§82. 


EXPRESS    TRUSTS,    ETC. 


[chap.    III. 


are  not  conclusive  against  a  trust.'      But  where  A.  deposits 
money  in  the  name  of  B.,  "  sub.  to  A.,"  and  A.  receives  the 

1  WUlis  V.  Smyth,  91  N.  Y.  297.    [See  note  a,  p.  84.] 


Conn.  638;  Towle  v.  Wood,  60  N.  H. 
434;  Smith  v.  Speer,  34  N.  J.  Eq. 
336.  But  Matter  of  Totten,  as  in- 
terpreted by  subsequent  cases,  seems 
to  give  effect  to  such  tentative  gifts. 

If  the  depositor's  intention  was 
to  pass  the  beneficial  interest  at 
once,  the  fact  that  the  control  and 
enjoyment  are  postponed  until  after 
his  death  and  even  the  fact  that  he 
intended  to  retain  the  right  to  use 
the  principal  for  his  own  benefit 
do  not  render  the  transfer  of  the 
beneficial  interest  invalid.  Scriv- 
ens  V.  North  Easton  Sav.  Bank, 
166  Mass.  255;  Hoboken  Bank  v. 
Schwoon,  62  N.  J.  Eq.  503. 

Deposits  which  are  in  form  "in 
trust"  for  another  must  be  distin- 
guished from  deposits  in  the  name 
of  another  or  in  the  joint  names  of 
the  depositor  and  another.  In 
cases  of  the  latter  kind  there  may  be 
a  trust,  although  words  of  trust  are 
not  used.  If  the  intention  of  the 
depositor  is  to  make  a  complete 
present  gift  of  the  deposit  or  of  so 
much  of  it  as  may  remain  after  his 
death,  the  intended  gift  may  be 
given  effect  without  deUvery  of  the 
bank  book,  by  construing  the  deposi- 
tor as  a  trustee  of  the  deposit.  Booth 
V.  Oakland  Bank,  122  Cal.  19;  Sav. 
Inst.  V.  Titcomb,  96  Me.  62;  Gard- 
ner V.  Merritt,  32  Md.  78;  Harris 
Banking  Co.  v.  Miller,  190  Mo.  640; 
Smith  V.  Savmgs  Bank,  64  N.  H. 
231;  Hoboken  Bank  v.  Schwoon,  62 
N.  J.  Eq.  503.  But  the  courts  are 
generally  agreed  that  where  words 
of  trust  are  not  used,  the  transfer 
of  a  beneficial  interest  in  the  account 

88 


is  not  complete,  and  therefore  the 
trust  is  not  established,  unless  the 
depositor  gives  notice  of  the  gift 
to  the  beneficiary  or  to  somebody 
who  can  be  said  to  represent  him. 
Main's  Appeal,  73  Conn.  638;  Tel- 
ford V.  Patton,  144  111.  611;  Bath 
Sav.  Inst.  V.  Fogg,  101  Me.  188; 
Norway  Sav.  Bank  v.  Merriam,  88 
Me.  146;  Fairfield  Sav.  Bank  v. 
Small,  90  Me.  546;  Taylor  v.  Henry, 
48  Md.  550;  Sherman  v.  New  Bed- 
ford Sav.  Bank,  138  Mass.  581; 
Cogswell  V.  Newburyport  Sav.  Inst., 
165  Mass.  524;  Noyes  v.  Newbury- 
port Sav.  Inst.,  164  Mass.  583; 
Scott  V.  Berkshire  Co.  Bank,  140 
Mass.  157;  Towle  v.  Wood,  60  N.  H. 
434;  Marcy  v.  Amazeen,  61  N.  H. 
131;  Smith  v.  Speer,  34  N.  J.  Eq. 
336;  In  re  Bohn,  136  N.  Y.  177; 
Sulhvan  v.  Sulhvan,  161  N.  Y. 
554;  Beaver  v.  Beaver,  117  N.  Y. 
421;  Schwmd  v.  Ibert,  69  N.  Y.  S. 
921,  60  App.  Div.  378.  And  the 
form  of  the  deposit  is  not  sufficient 
evidence  of  an  intention  to  make  a 
present  gift.  Cooney  v.  Ryter,  46 
La.  An.  883;  Booth  v.  Bristol  County 
Bank,  162  Mass.  455;  Beaver  v. 
Beaver,  117  N.  Y.  421;  Prov-idence 
Inst,  for  Sav.  v.  Carpenter,  IS  R.  I. 
287;  Telford  v.  Patton,  144  111.  611; 
In  re  Bolm,  136  N.  Y.  177;  Fair- 
field Sav.  Bank  v.  Small,  90  Me. 
546;  Peninsular  Sav.  Bank  v.  Wine- 
man,  123  Mich.  257.  See  In  re 
Howes.  Howes  v.  Piatt,  21  Times 
L.  R.  501;  O'Flaherty  v.  Browne, 
(1907)  2  Ir.  R.  416.  See  also  cases 
cited  supra. 

WTien  one  seeks  by  a  bill  in  equity 


CHAP.  III.]  STATUTE    OF    FRAUDS.  [§  83. 

dividends  and  keeps  the  pass-book  and  draws  such  portions  of 
the  principal  for  her  own  use  as  she  chooses,  there  is  no  gift 
to  nor  trust  for  B.  If  there  is  any  trust,  it  is  B.  who  is  trustee 
for  A.' 

§  83.  The  same  principles  of  construction  apply  to  trusts 
proved  by  this  description  of  evidence  as  in  other  cases;  and 
the  objects  and  nature  of  the  trust  must  always  appear  from 
such  writings  with  sufficient  certainty,  and  also  their  connec- 
tion with  the  subject-matter  of  the  trust."  Indeed,  courts 
require  demonstration  on  the  latter  point;  and  the  trust  will 
not  be  executed  if  the  precise  nature  of  it,  and  the  particular 
persons  who  are  to  take  as  cestuis  que  trust,  and  the  propor- 
tions in  which  they  are  to  take,  cannot  be  ascertained.^  When 
all  these  particulars  properly  appear  from  writings  signed  by 
the  party,  the  trust  will  be  executed;  but  if  the  terms  of  the 

'  Northrop  v.  Hale,  73  Maine,  71.  See  Marcy  v.  Amazeen,  61  N.  H. 
131,  retaining  control  and  giving  cestui  no  notice,  no  trust;  and  Bartlett 
V.  Remington,  59  N.  H.  364,  a  similar  case,  an  executory  trust  without 
consideration,  is  not  enforceable;  and  Pope  v.  Burhngton  Savings  Bank, 
57  N.  Y.  126,  where  the  cestui  had  no  knowledge  of  the  deposit,  and  the 
depositor  withdrew  part  of  the  fund. 

2  Forster  v.  Hale,  3  Ves.  708;  Steere  v.  Steere,  5  Johns.  Ch.  1;  Abel 
r.  Radcliff,  13  Johns.  297;  Rutledge  v.  Smith,  1  McC.  Ch.  119;  Freeport 
V.  Bartol,  3  Greenl.  340;  Arms  v.  Ashley,  4  Pick.  71;  Hill  on  Trustees,  61. 
iBraun  v.  First  German  E.  L.  Church,  198  Pa.  St.  152;  Taft  v.  Dimond,  16 
R.  I.  584;  Christian  v.  Highlands,  32  Ind.  App.  104.] 

'  Smith  I'.  Mathews,  3  De  G.,  F.  &  J.  139;  Morton  v.  Tewart,  2  Yo. 
&  Col.  Ch.  80;  Lewin  on  Tmsts,  46;  Leman  v.  Whitley,  4  Russ.  423; 
Whclan  v.  Whelan,  3  Cow.  537;  Jackson  v.  Moore,  id.  706;  Reid  v.  Fitch, 
11  Barb.  399;  Jones  ?-'.  Wilson,  6  Ala.  332;  Taylor  v.  Keep,  2  Brad.  (111.)  368; 
[Filkins  v.  Severn,  127  Iowa,  738;  Myers  v.  Myers,  167  111.  52,  65;  Renz  v. 
Stoll,  94  Mich.  377;  Yerkes  v.  Perrin,  71  Mich.  567;  Atwater  v.  Russell, 
49  Minn.  57.) 

to  establish  a  trust  in  a  deposit  in  a  Oppenheimer  i'.  First  Nat.  Bank,  20 

bank,  and  to  set  up  a  title  adverse  Mont.  192. 

to  the  depositor,  the  depositor  is  a  As  to  gifts  of  insurance  poUcies, 

necessary  party  to  the  suit,  Gregory  choses  in  action,  etc.,  see  1   Ames 

V.  Merchants'  National  Bank,   171  on  Trusts  (2d  ed.),   139,  145,  155, 

Mass.    67;    but    the    bank    is    not.  163. 

89 


§  84.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

tnist  are  collected  from  several  papers,  it  is  not  necessary  that 
all  of  them  should  be  signed,  provided  they  are  so  referred  to 
and  connected  with  the  paper  that  is  signed  that  they  may  be 
identified  and  read  as  genuine  papers,  and  a  part  of  the  trans- 
action.^ Nor  need  there  be  an  actual  subscription  of  the  party's 
name,  if  the  paper  is  authenticated  by  the  party  as  his  writing 
for  the  purpose  of  declaring  the  trust  by  writing  his  initials.^ 
The  party  whose  signature  is  essential  is  the  party  who  by  law 
is  enabled  to  declare  the  trust;  and  it  has  been  decided,  that^ 
whether  the  property  is  real  or  personal,  the  party  enabled  to 
declare  the  trust  is  the  owner  of  the  beneficial  interest,  who 
has  therefore  the  absolute  control  over  the  property,  the  holder 
of  the  legal  estate  being  a  mere  instrument  or  conduit  pipe  for 
him.^  But  if  there  is  an  absolute  conveyance  of  the  legal  titk; 
to  a  supposed  trustee,  and  there  is  no  declaration  of  a  trust  prior 
to  or  at  the  time  of  the  conveyance  by  the  grantor,  and  the 
cestui  que  trust  attempts  to  charge  the  grantee  with  a  trust  in. 
respect  to  the  land,  he  must  produce  some  writing  signed  by  the 
grantee  of  the  legal  title  in  order  to  charge  him  with  the  trust.* 
It  is  only  when  there  is  no  dispute  concerning  the  existence  of  a 
trust,  or  when  the  trust  arises  by  operation  of  law  as  a  resulting 
or  implied  trust,  that  the  cestui  que  trust  himself  can  declare  its 
terms. ^ 

§  84.  It  remains  to  consider  when  and  how  far  trusts  may 
be  declared  or  proved  by  the  answers  of  parties  in  chancery. 

^  Denton  v.  Davis,  18  Ves.  503;  Lewin  on  Trusts,  47;  Browne  on  the 
Statute  of  Frauds,  §§  105,  350-355.     iRansdel  v.  Moore,  153  Ind.  393.] 

2  Smith  V.  Howell,  3  Stockt.  349. 

^  Tiemey  v.  Wood,  19  Beav.  330;  Donahoe  v.  Conrahy,  2  Jon.  &  La. 
688;  Lewin  on  Trusts,  47. 

*  Browne  on  Statute  of  Frauds,  §  106;  Adlington  v.  Cann,  3  Atk.  145; 
Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Lee  v.  Ferris,  ib.  357;  Russell  r.  Jackson, 
10  Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Brown  v.  Brown,  12  Md 
87;  Tritt  v.  Crotzer,  13  Penn.  St.  451;  In  re  Dunbar,  2  Jon.  &  La.  120 
[Myers  v.  Myers,  167  111.  52.] 

^  Bellasis  v.  Compton,  2  Vern.  294;  Lee  v.  Hun  toon,  1  Hoff.  Ch.  447; 
Harris  r.  Bamet,  3  Grat.  339;  and  cases  in  preceding  note. 

90 


CHAP.  III.]  ANSWERS    IN    CHANCERY.  [§  84. 

It  has  been  decided  that  a  defendant  is  bound  to  answer  to  a 
bill  suggesting  a  parol  trust,  and  that  a  general  demurrer  ^ 
would  be  overruled;  but  perhaps  this  doctrine  is  confined  to 
parol  trusts  that  arise  from  fraud,  accident,  or  mistake;  for 
in  the  case  of  express  trusts,  if  it  can  be  gathered  from  the 
bill  that  the  plaintiff  relies  upon  parol  evidence  alone,  with 
no  circumstances  to  take  it  out  of  the  statute,  it  has  been 
held  that  the  defendant  may  demur.'^  But  the  general  rule 
is  that  if  a  trust  is  alleged  in  a  bill  it  will  be  presumed  to  be 
legally  created,  i.  e.,  in  writing,  unless  the  contrary  appears; 
therefore  it  must  clearly  appear  from  the  bill  that  the  alleged 
trust  rests  in  parol  only,  or  the  demurrer  will  be  overruled.^  It 
has  also  been  decided,  that  if  the  bill  simply  omits  to  state  that 
the  trust  is  in  writing,  a  demurrer  will  be  overruled ;  for,  as  the 
statute  only  requires  that  it  should  be  proved,  not  created,  by 
writing,  the  writing  is  no  part  of  the  trust,  but  only  evidence  of 
the  trust  to  be  adduced  at  the  hearing.'*  (a)  In  all  cases,  how- 
ever, the  defendant  viay  answer,  and  if  in  his  answer  he  confess 
the  trust  without  insisting  upon  the  statute  of  frauds,  he  will 
be  held  to  have  waived  the  benefit  of  the  statute,  and  his  answer 


*  Muckleston  v.  Brown,  6  Ves.  52;  Stickland  v.  Aldridge,  9  Ves.  516; 
Chamberlain  v.  Agar,  2  V.  &  B.  259;  Newton  v.  Pelham,  1  Ed.  514;  Lomax 
V.  Ripley,  3  Sm.  &  Gif.  48;  Peralta  v.  Castro,  6  Cal.  354;  Cottington  v. 
Fletcher,  2  Atk.  155;  Childers  v.  ChUders,  3  K.  &  J.  310;  1  Dc  G.  &  J.  485. 

=  Walker  v.  Locke,  5  Cush.  91;  Wood  v.  Midgeley,  27  Eng.  L.  &  Eq.  206; 
5  De  G.,  M.  &  G.  41;  Ridg^vay  v.  Wharton,  3  id.  677;  Barkworth  v.  Young 
4  Dr.  1.  See  Skinner  v.  McDonall,  2  De  G.  &  Sm.  265.  [Dicken  v.  Mc- 
Kinley,  163  111.  318,  327.] 

3  Cozine  v.  Graham,  2  Paige,  177.    [Randall  v.  Constans,  33  Minn.  329.1 

*  Davis  V.  Otty,  33  Beav.  540.  [Throckmorton  v.  O'Reilly,  55  A.  56  (N. 
J.  Ch.  1903)  semhle;  Whiting  v.  Dyer,  21  R.  I.  85;  Logan  v.  Brown,  20  Okla. 
334;  Hanson  v.  Svarverud,  120  N.  W.  550  (N.  D.  1909).  See  contra, 
Monson  i-.  Hutchin,  194  111.  431.] 

(a)  It  has  been  held  that  an  ad-  itself  does  not  show  that  the  declai'- 
mission  by  counsel  in  argument,  at  ion  was  not  in  wTiting.  Thompson 
that  the  alleged  trust  was  created  v.  Marley,  102  Mich.  476;  Randall 
by  parol,  will  cause  the  court  to  v.  Constans,  33  Minn.  329,  334 
dismiss  the  bill,  although  the  bill      {semble). 

91 


§  85.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

may  be  used  as  a  written  declaration  and  proof  of  the  trust/  on 
the  ground  that  the  plaintiff  is  not  called  upon  to  introduce 
evidence,  and  the  trust  appears  upon  the  written  answer  be- 
fore the  court,  (a) 

§  85.  Resulting  and  implied  trusts  that  arise  from  fraud 
can  be  proved  by  parol,  although  the  defendant  in  his  answer 
denies  the  trusts  and  sets  up  the  statute  in  bar;  for  such  trusts 
are  not  within  the  statute.  In  cases  of  express  trusts,  if  the 
defendant  denies  them,  or  if  he  denies  them  and  at  the  same 
time  sets  up  the  statute,  or  if  he  do  not  answer  at  all,  only  legal 
evidence  or  evidence  in  writing  can  be  given  in  proof.^  And  if 
the  defendant  confesses  the  parol  trusts  in  his  answer,  and  at 
the  same  time  sets  up  the  statute  in  bar,  he  \\all  have  the  benefit 

1  Hampton  v.  Spencer,  2  Vem.  288;  Nab  v.  Nab,  10  Mod.  404  ;  1  Eq. 
Cas.  Ab.  404;  Gil.  Eq.  146;  Dean  v.  Dean.  1  Stockt.  425;  Whiting  v.  Gould 
2  Wis.  552;  Woods  v.  Dille,  11  Ohio,  455;  Newton  v.  Swazey,  8  N.  H.  9; 
Rowton  V.  Rowton,  1  Hen.  &  Munf.  91;  Lingan  v.  Henderson,  1  Bland. 
236;  Tarleton  v.  Vietes,  1  Gilm.  470;  Steames  v.  Hubbard,  8  Greenl.  320; 
Thornton  v.  Henry,  2  Scam.  219;  School  Trustees  v.  Wright,  12  111.  432; 
McCubbin  v.  Cromwell,  7  Gill  &  J.  157;  Kinzief.  Penrose,  2  Scam.  250; 
Talbot  V.  Bowen,  1  A.  K.  Marsh.  436;  Albert  v.  Ware,  2  Md.  Ch.  169,  6 
Md.  Ch.  66;  Chitwood  v.  Brittain,  1  Green  Ch.  450;  Baker  w.  HoUabaugh, 
12  Ark.  322;  Cozine  v.  Graham,  2  Paige,  177;  Tilton  v.  Tilton,  9  N.  H.  386; 
Switzer  v.  Skiles,  1  Gilm.  529;  Allen  v.  Chambers,  4  Ired.  Eq.  125;  Hall  v. 
Hall,  1  Gill,  383;  McLaurie  v.  Partlow,  53  111.  340.  [Myers  v.  Myers, 
167  111.  52.] 

2  Trapnal  v.  Brown,  19  Ark.  39;  Wynn  v.  Garland,  id.  23;  Smith  v. 
Howell,  Stockt.  349;  Whyte  v.  Arthur,  2  Green,  Ch.  521;  Broadness  v. 
Woodman,  27  Ohio  St.  353;  Matthews  v.  Denman,  24  id.  615. 

(o)  Where  the  suit  was  to  set  pends  on  the  nature  of  the  facts 
aside  a  deed  for  undue  influence,  which  brought  it  into  being,  and 
the  verified  answer  of  the  grantee  not  [on  the  manner  in  which  its 
that  the  land  had  been  conveyed  existence  is  proved  after  its  crea- 
to  her  in  trust  for  certain  specified  tion,  the  fact  that  it  is  fully  set 
persons,  has  been  held  to  satisfy  forth  by  the  trustee  in  his  answer 
the  statute  of  frauds  and  render  the  in  chancery  does  not  change  a  re- 
trust  enforceable  against  her.  Schu-  suiting  trust  into  an  express  trust, 
macher  i;.   Draeger,   137  Wis.  618.  Warren  v.  Tynan,  54  N.  J.  Eq.  402; 

As  the  character  of  the  trust,  Adams  v.  Carey,  53  N.  J.  Eq.  334. 
as  an  express  or  implied  one,  de- 

92 


CHAP.  III.]  ANSWERS    IN    CHANCERY.  [§  85. 

of  the  statute,  and  the  court  will  not  use  the  answer  as  a  written 
declaration  and  proof  of  the  trust.^  In  one  case  it  was  held  that 
a  trust  appearing  from  defendant's  answer  would  be  executed 
by  the  court  although  it  was  entirely  different  from  the  trust 
alleged  in  the  bill;  ^  but  this  case  has  not  been  followed.  In  a 
late  case  where  a  bill  was  filed  setting  forth  a  fraud  and  asking 
to  have  a  resulting  trust  declared  and  a  deed  set  aside,  and  the 
defendant  confessed  an  express  trust  by  parol,  and  offered  to 
execute  it,  Chancellor  Vrooin  said,  "  I  am  inclined  to  believe 
that  if  the  present  complainant  had  filed  a  bill  claiming  this 
deed  to  be  a  deed  of  trust,  and  praying  that  it  might  be  so 
decreed  according  to  the  original  intention  of  the  parties, 
the  answer  of  the  defendant  admitting  the  trust  would  have 
been  good  evidence  of  it.  It  would  have  amounted  to  a  suffi- 
cient declaration  of  trust.  But  it  would  seem  to  be  different 
when  a  complainant  seeks  on  the  ground  of  fraud  to  set  aside 
a  deed  absolute  on  its  face,  and  confessedly  without  any  con- 
sideration paid;  for,  to  suffer  a  defendant  in  such  case  to  come 

1  Dean  v.  Dean,  1  Stockt.  425;  Whiting  v.  Gould,  2  Wis.  552.  [Davis 
V.  Stambaugh,  163  111.  557  (  case  of  a  deposition  signed  under  conditions 
showing  no  waiver  of  the  defense  of  the  statute).]  The  proposition  in  the 
text  was  long  a  disputed  point.  It  was  apparently  held  that,  as  the  defend- 
ant by  his  answer  had  admitted  the  trust,  the  plaintiff  was  not  called  upon 
to  introduce  any  evidence.  There  was  no  danger  of  fraud  and  perjury;  as 
the  court  had  the  defendant's  statement  of  a  trust  in  writing  under  oath, 
and  as  equity  takes  hold  of  a  party's  conscience,  he  ought  to  be  held  to 
execute  the  trust  wliich  he  confesses,  notwithstanding  the  statute.  On 
the  other  hand,  in  bills  for  the  specific  performance  of  a  parol  contract  for 
the  sale  of  lands,  the  defendant  was  held  not  bound  to  execute  the  contract 
if  he  set  up  the  statute,  although  he  confessed  the  contract  in  his  answer. 
There  would  seem  to  be  no  reason  for  a  different  rule  in  the  two  cases;  and 
since  it  is  now  established  that  a  defendant  may  demur  to  a  bill  that  on  its 
face  alleges  a  mere  parol  trust,  it  would  seem  to  follow  that  the  confession 
of  a  defendant  should  not  be  used  to  override  a  positive  rule  of  law.  The 
two  cases  cited  establish  the  proposition  of  the  text,  and  it  is  presumed  that 
the  same  rule  would  be  held  in  all  the  United  States.  It  is  a  question  of 
pleading  and  practice,  and  it  is  considered  here  only  incidentally  in  con- 
sidering how  trusts  may  be  created  under  the  statute  of  frauds.  The  reader 
will  find  a  full  discussion  of  the  question  in  Story's  Eq.  Pleading,  §§  765- 
768. 

*  Hampton  t^.  Spencer,  2  Vem.  288. 

93 


§  86.]  EXPRESS   TRUSTS,    ETC-  [CHAP.    III. 

in  and  avoid  the  claim  by  setting  up  a  trust  would  be  to  permit 
him  to  create  a  trust  according  to  his  own  views,  and  thereby 
prevent  the  consequences  of  a  fraud."  ^  It  must  be  observed, 
that  if  the  answer  of  the  trustee  is  used  to  prove  the  trust,  the 
terms  of  the  trust  must  be  gathered  from  the  whole  answer  as 
it  stands,  for  one  part  of  the  answer  cannot  be  read  and  another 
part  rejected.  If,  therefore,  the  plaintiff  read  the  answer  in 
proof  of  the  trust,  he  must  at  the  same  time  read  the  particular 
terms  of  the  trust  as  therein  stated.^  (a)  In  States  where  the 
statute  of  frauds  is  not  in  force,  trusts  may  be  proved  by  parol, 
in  opposition  to  the  defendant's  answer  denying  them. 

§  86.  Personal  chattels  are  not  within  the  terms  of  the 
statute,  and  trusts  in  personal  property  may  be  declared  and 
proved  by  parol,  though  Mr.  Eden  said  that  "  he  had  not  been 
able  to  find  an  instance  of  a  declaration  of  trust  of  personal 
property,  evidenced  only  by  parol,  having  been  carried  into 
execution."  ^  And  certainly  the  English  cases  usually  referred 
to  do  not  establish  the  proposition  in  express  terms.^    There 

1  Hutchinson  v.  Tindall,  2  Green,  Ch.  357;  and  see  Jones  v.  Slubey, 

5  Harr.  &  J.  372;  McCubbin  v.  CromweU,  7  Gill  &  J.  157;  Haigh  v.  Kay, 
L.  R.  7  Ch.  469.  [See  also  Warren  v.  Tynan,  54  N.  J.  Eq.  402;  Adams  v. 
Carey,  53  N.  J.  Eq.  334.] 

2  Hampton  v.  Spencer,  2  Vem.  288;  Nab  v.  Nab,  10  Mod.  404;  Free- 
man V.  Tatham,  5  Hare,  329;  Steames  v.  Hubbard,  8  Greenl.  320;  Lewin 
on  Trusts,  46. 

'  Fordyce  v.  WilUs,  3  Bro.  Ch.  (n.). 

*  Nab  V.  Nab,  10  Mod.  404,  1  Eq.  Cas.  Ch.  404,  and  Jones  v.  Nabbe, 
Gil.  Eq.,  are  usually  cited  to  sustain  the  proposition,  but  they  do  not.  In 
Crook  V.  Booking,  2  Vem.  50,  106;  Inchiquin  v.  French,  1  Cox,  1;  Met- 
ham  V.  Devon,  1  P.  Wms.  529,  and  Smith  v.  Attersoll,  1  Russ.  274,  there 
were  written  declarations  of  trust,  and  the  question  was  as  to  the  effect  of 
the  writings,  though  it  was  remarked  in  these  cases  that  trusts  of  person- 
alty could  be  evidenced  by  parol.    The  case  of  Benbow  v.  TowTisend,  1  My. 

6  K.  506,  was  this:  A.  had  loaned  £2,000,  and  taken  a  mortgage  in  the 
name  of  B.,  his  brother,  declaring  that  he  intended  it  for  the  benefit  of  B. 

(a)  The  answer  must  be  com-     160  111.  56;  Warren  v.  Tynan,  54 
plete  as  a  declaration  of  trust,  and     N.  J.  Eq.  402. 
fully  show  a  trust.    White  v.  Ross, 
94 


CHAP.  III.]  PERSONAL    PROPERTY.  [§  86. 

does  not  seem  to  be  any  objection,  however,  to  the  establish- 
ment of  a  trust  in  personal  property  by  parol.  The  owner  in 
the  absence  of  a  statute  has  entire  control  of  it;  he  can  sell 
and  transfer  it  without  writing  and  by  parol,  and  if  he  can 
transfer  it  by  parol,  there  is  no  reason  why  he  may  not  by 
parol  transfer  it  upon  such  lawful  terms,  and  to  such  uses  and 
trusts,  as  he  may  desire.  It  has  been  so  ruled  in  express  decisions 
in  the  United  States.^  (a)    When  a  person  sui  juris  orally  or  in 

After  the  death  of  A.  his  executor  brought  a  bill  against  B.  to  obtain  the 
mortgage,  and  the  question  was  whether  the  representatives  of  A.  were 
entitled  to  the  mortgage.  It  was  held  that  B.  was  entitled  to  hold  the 
mortgage,  and  it  was  remarked  that  a  trust  of  personal  property  was  not 
within  the  statute  of  frauds.  It  will  be  observed  that  the  mortgage  was 
in  writing  in  the  name  of  B.,  and  that  the  parol  evidence  was  not  used 
to  establish  a  trust  in  B.,  but  to  rebut  a  trust  resulting  to  A.  from  his 
having  paid  the  purchase-money.  If  A.  had  taken  the  mortgage  in  his 
own  name,  but  had  declared  that  it  was  in  trust  for  B.,  the  question  would 
have  fairly  arisen,  whether  a  parol  declaration  could  create  a  trust  in  a 
mortgage  of  real  estate.  Bayley  v.  Boulcott,  4  Russ.  346,  only  estabhshes 
the  proposition  that  a  paper  prepared  under  the  direction  of  the  owTier, 
but  which  she  refused  to  execute,  will  not  create  a  trust.  But  in  McFadden 
V.  Jenkyns,  1  Phill.  153,  1  Hare,  458,  it  was  directly  held  that  a  parol 
declaration  was  sufficient  to  create  a  trust  in  personal  property.  If  there 
are  doubts  and  difficulty  upon  the  supposed  words,  the  court  will  give 
weight  to  the  fact  that  they  were  not  written  to  infer  that  they  may  not  be 
the  deliberate  sentiments  of  the  party.  Dipple  v.  Corles,  11  Hare,  183; 
Paterson  v.  Murphy,  id.  91,  92. 

>  Hooper  v.  Holmes,  3  Stockt.  122;  Day  v.  Roth,  18  N.  Y.  448;  Rob- 
son  V.  Harwell,  6  Ga.  589;  Higgenbottom  v.  Peyton,  3  Rich.  Eq.  398; 
Kirkpatrick  v.  Davidson,  2  Kelley,  297;  Gordon  v.  Green,  10  Ga.  534; 
Eamball  v.  Morton,  1  Halst.  Ch.  31.  See  McFadden  v.  Jenkyns,  1  Hare, 
461;  1  Pliill.  157;  Thorpe  v.  Owens,  5  Beav.  224;  George  v.  Bank  of  Eng- 
land, 7  Price,  646;  Hawkins  v.  Gordon,  2  Sm.  &  Gif.  451;  Pcckham  t'. 
Taylor,  3  Beav.  250;  Hunnewell  v.  Lane,  11  Met.  163;  Simms  v.  Smith, 
11  Ga.  195;  Crissman  v.  Crissman,  23  Mich.  218;  Berry  v.  Norris,  1  Drew, 
302;  Maffitt  v.  Rynd,  69  Penn.  St.  30;  Thatcher  v.  Churchill,  118  Mass. 
108;  Gerrish  v.  New  Bedford  Inst,  for  Savings,  128  Mass.  159;  Chase  v. 
Chapin,  130  Mass.  128;  Davis  v.  Coburn,  128  Mass.  377;  Hellman  v.  Mc- 
Wilhams,  70  Cal.  449;  Hon  v.  Hon,  70  Ind.  135;  Hunt  v.  EUiott,  80  Ind. 
245;  Patterson  v.  Mills,  69  Iowa,  755;  Cobb  v.  Knight,  74  Maine,  253; 
Danser  v.  Warwick,  33  N.  J.  Eq.  133;  Gilman  v.  McArdle,  99  N.  Y.  451; 

(a)  But  in  Georgia,  by  statute,  created  or  declared  only  in  writing, 
express  trusts  in  personalty  can  be    Smith  v.  Peacock,  114  Ga.  691,  697. 

95 


§  86.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

writing  explicitly  or  impliedly  declares  that  he  holds  personal 
property  in  presenti  for  another,  he  thereby  constitutes  him- 
self an  express  trustee.^  Under  these  decisions  trusts  may  be 
created  by  parol  in  any  mere  personal  property,  as  in  the  shares 
of  corporations,  although  the  corporations  themselves  own 
real  estate.^  If  one  receives  notes  of  another  in  trust  to  pay 
such  person's  debt,  and  agrees  with  creditor  to  turn  over  the 
notes  or  their  proceeds  to  him,  a  trust  arises.^  So  where  a  fund 
is  received  and  held  to  invest  for  another.'*  Money  or  a  debt 
secured  by  mortgage  of  real  estate  is  a  personal  chattel,  and 
a  trust  in  the  money  or  mortgage  debt,  and  in  the  mortgage 
itself,  may  be  created  by  parol;  ^  (a)  and  although  a  parol 
declaration  of  trust  will  not  affect  land,  yet  if  the  land  is  to  be 
converted  into  money,  and  is  converted,  a  parol  declaration 
will  bind  the  proceeds  or  the  money .^    And  this  will  hold  though 

Gadsden  v.  Whaley,  14  S.  C.  211;  Dickerson's  App.  115  Penn.  St.  198; 
[Harris  Banking  Co.  v.  Miller,  190  Mo.  640,  1  L.  R.  A.  (N.  S.)  790;  Martin 
V.  Martin,  43  Or.  119;  Maher  v.  Aldrich,  205  111.  242;  Austin  v.  Wilcoxson, 
149  Cal.  24.] 

1  Tyler  v.  Tyler,  25  Brad.  (111.)  339. 

2  Porter  v.  Bank  of  Rutland,  19  Vt.  410;  Forster  v.  Hale,  3  Ves.  Jr. 
696;  5  Ves.  308;  Ashton  v.  Langdale,  4  De  G.  &  Sm.  402;  4  Eng.  L.  &  Eq. 
80;  Myers  v.  Perigal,  16  Sim.  533;  14  Eng.  L.  &  Eq.  229;  Hilton  v.  Giraud, 
1  De  G.  &  Sm.  183;  Kilpin  v.  Kilpin,  1  M.  «fe  K.  520;  Wheatley  v.  Purr, 
1  Keen,  551. 

3  Walden  v.  Karr,  88  111.  49.  [See  Byers  v.  McEniry,  117  Iowa,  499; 
Koch  V.  Streuter,  232  lU.  594;  Coyne  v.  Supreme  Conclave,  106  Md.  54.] 

*  Clapp  V.  Emery,  98  111.  523. 

^  Bellasis  v.  Compton,  2  Vem.  294;  Benbow  v.  Townsend,  1  M.  &  K. 
510;  Childs  v.  Jordon,  106  Mass.  322;  Hackney  v.  Brooman,  62  Barb.  650. 
[Berry  v.  Evendon,  14  No.  Dak.  1;  Danser  v.  Warwick,  33  N.  J.  Eq.  133.] 

•  Maffitt  V.  Rynd,  69  Penn.  St.  30;  Mohn  v.  Mohn,  112  Ind.  285;  Wise- 
man V.  Bajdor,  69  Tex.  63.  [On  this  point  see  also  Worley  v.  Sipe,  111  Ind. 
238;  Talbott  v.  Barber,  11  Ind.  App.  1,  7;  Bork  v.  Martin,  132  N.  Y.  280; 
Spencer  v.  Richmond,  46  N.  Y.  App.  Div.  481,  61  N.  Y.  S.  397;  Bechtel 
V.  Ammon,  199  Pa.  St.  81;  Collar  v.  Collar,  75  Mich.  414;  and  86  Mich. 
507,  13  L.  R.  A.  621;  Rapley  v.  Mcliinney's  Estate,  143  Mich.  508;  Calder  w. 

(a)  And  the  trust  may  be  proved  land  has  been  taken  by  the  trustee, 
by  parol  even  after  the  mortgage  Berry  v.  Evendon,  14  No.  Dak.  1. 
has  been  foreclosed  and  title  to  the 

96 


CHAP.  III.]  PERSONAL    PROPERTY.  [§  86. 

the  parol  agreement  to  hold  the  money  in  trust  is  subsequent 
to  the  parol  trust  respecting  the  land,  no  sale  by  the  parol 
trustee  having  been  contemplated.^  Mr.  Hill  says  that  "it 
would  seem  to  follow  that  legacies  and  annuities,  and  other 
sums  of  money  charged  on  land,  do  not  come  within  the  opera- 
tion of  the  statute  respecting  parol  declarations  of  trusts  in 
land."  2  But  all  chattels  real  are  within  the  statute,  and  trusts 
in  them  must  be  evidenced  in  writing,  as  in  case  of  freehold  or 
leasehold  interests.^  The  same  remarks  are  to  be  made  in  re- 
lation to  parol  trusts  of  personal  property  that  were  made  in 
relation  to  parol  trusts  of  real  estate  where  such  trusts  are  pos- 
sible."*  The  subject-matter  of  the  trust  must  be  clearly  ascer- 
tained, as  well  as  the  purposes  of  the  trust  and  the  persons  who 
are  to  take  the  beneficial  interests,  (a)  Loose,  vague,  and  in- 
definite expressions  are  insufficient  to  create  the  trust.''  A  mere 
declaration  of  a  purpose  to  create  a  trust  is  of  no  value  unless 
carried  into  effect.  A  simple  promise  of  a  future  donation 
without  consideration  good  or  valuable  creates  no  trust  that 
equity  can  enforce.®  If  the  trust  is  once  created  in  writing  it 
cannot  be  varied  by  parol,  and  if  it  is  once  created  by  parol 
it  cannot  be  altered  or  varied  by  other  declarations  of  the 
trustee;  as  where  a  daughter  delivered  to  her  father  $7000  upon 
the  parol  trust  that  he  would  secure  the  money  in  trust  for  her 
and  invest  it  for  her  sole  benefit,  and  the  father  made  his  will 
giving  said  notes  to  two  trustees  to  receive  and  pay  over  the 

Moran,  49  Mich.  14;  Marvel  v.  Marvel,  70  Neb.  498;  Dexter  v.  MacDonald, 
196  Mo.  373;  and  note  (a)  to  §  79.] 
1  Thomas  v.  Merry,  113  Ind.  83. 

*  Hill  on  Trustees,  58  (n.);  see  note  1,  p.  74. 

3  Skett  V.  Whitmore,  Freem.  280;  Forster  v.  Hale,  3  Ves.  Jr.  696;  Rid- 
dle V.  Emerson,  1  Vem.  108;  Hutchins  v.  Lee,  1  Atk.  447;  Bellasis  v.  Compton 
2  Vern.  294;  Gardner  v.  Rowe,  5  Russ.  258;  Otis  v.  Sill,  8  Barb.  102. 

*  Ante,  §  77;  Cris.sman  v.  Crissman,  23  Mich.  218. 

*  Bailey  v.  Irwin,  72  Ala.  505;  a  parol  trust  must  be  clear,  and  the  evi- 
dence of  it  convincing.     [Austin  v.  Wilcoxson,  149  Cal.  24,  84.] 

"  Allen  V.  Withrow,  110  U.  S.  119.  [Fisher  v.  Hampton  Transportatiou 
Co.,  136  Mich.  218.] 

(a)  Atwater  v.  Russell,  49  Minn.  57. 
VOL.  I.  —  7  97 


§  87.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

income  and  interest  to  the  daughter  during  her  Hfe,  and  at  her 
decease  to  pay  the  principal  to  such  persons  as  she  by  her  last 
will  should  direct  and  appoint,  and  in  default  of  such  appoint- 
ment, to  her  heirs-at-law :  the  father  died,  and  his  estate  turning 
out  insolvent,  she  brought  a  bill  praying  that  the  notes  might 
be  delivered  to  some  person  to  be  appointed  by  the  court  as 
trustee  for  her.  Mr.  Justice  Wilde,  in  delivering  the  opinion  of 
the  court,  said,  "It  is  very  clear  that  the  father,  his  executor, 
and  his  heirs  and  creditors,  are  bound  by  the  trust.  It  was 
not  in  the  power  of  the  trustee  to  divest  or  defeat  the  trust 
without  the  consent  of  the  cestui  que  trust,  except  by  a  sale  of 
the  trust  property  to  a  bona  fide  purchaser,  for  a  valuable 
consideration,  and  without  notice  of  the  trust.  Nor  could 
the  trustee  vary  the  terms  of  the  trust,  or  declare  any  new 
trust,  to  the  prejudice  of  the  cestui  que  trust,  unless  with  her 
consent."  ^ 

§  87.  Under  the  statutes  relating  to  the  execution  of  last 
wills  and  testaments,  no  parol  declaration  can  take  effect  as 
a  nuncupative  will,  except  in  the  case  of  soldiers  in  actual 
service,  and  mariners  at  sea.  These  persons  may,  according  to 
the  statutes  of  nearly  all  the  States,  make  nuncupative  wills 
of  their  wages  and  other  personal  property.  It  would  seem  to 
follow  that  they  can  create  valid  trusts  in  their  wages  and 
other  personal  property  by  nuncupative  wills  so  made  as  to  be 
proved  and  allowed  in  the  courts  of  probate,  or  other  courts 
having  jurisdiction  in  such  matters.  Personal  property  may 
be  so  given  and  delivered  to  one  in  trust  for  another  for  a  particu- 
lar purpose  that  it  will  be  good  as  a  donatio  causa  mortis,  and 
the  trust  will  be  executed  by  courts  of  equity;  ^  but  courts  do 

1  Hunnewell  v.  Lane,  11  Met.  163. 

'^  Blunt  V.  Burrow,  4  Bro.  Ch.  75,  and  Perkins's  notes,  1  Ves.  Jr.  546, 
and  Sumner's  notes;  Moore  v.  Darton,  4  De  G.  &  Sm.  517,  7  Eng.  L.  & 
Eq.  134;  Bomeman  v.  Sedlinger,  3  Shep.  429;  8  Shep.  185;  Constant  v. 
Schuyler,  1  Paige,  316.  And  see  Tate  v.  Leithhead,  1  Kay,  658;  Ham- 
brooke  v.  Simmons,  4  Russ.  25;  Hill  v.  Hill,  8  M.  &  W.  401;  Drury  v.  Smith, 
1  P.  Wms.  404;  1  Story,  Eq.  Jur.  §  607. 

98 


CllAl'.   III.]  STATUTE    OF    WILLS.  [§  89. 

not  favor  donations  mortu  causa,  (a)  It  has  been  held  that  a 
gift,  mortis  causa,  of  a  fund  in  trust  to  be  disposed  of  for  benevo- 
lent purposes,  at  the  absolute  and  unlimited  discretion  of  the 
donee,  could  not  be  sustained,^ 

§  88.  An  attempt  was  made  at  one  time  to  hold  gifts  to 
charitable  uses  as  excepted  from  the  statute;  but  Lord  Talbot 
decided,^  and  Lord  Hardwicke  affirmed  the  decision,^  and 
Lord  Northington  said  every  man  of  sense  must  subscribe  to 
it,  that  a  gift  to  a  charity  must  be  treated  on  the  same  footing 
with  any  other  disposition. "* 

§  89.  In  addition  to  the  statute  of  frauds,  which  forbids  the 
creation  of  express  trusts  in  lands  unless  the  trust  is  evidenced 
by  some  writing  signed  by  the  party,  there  are  statutes  in 
every  State  that  regulate  the  execution  of  wills.  By  the  original 
statute  of  frauds,  all  wills  to  pass  real  estate  were  required  to 
be  in  writing,  signed  by  the  testator,  and  attested  in  his  presence 
by  three  or  four  witnesses.^  This  statute  has  been  substantially 
adopted  in  all  the  States,  though  there  is  some  diversity  in  the 

^  Dole  V.  Lincoln,  31  Me.  422.  But  the  court  decided  the  case  on  the 
ground:  (1)  that  there  was  not  a  sufficient  dehvery  to  constitute  a  good 
gift  mortis  causa,  and  (2)  that  if  the  gift  had  been  good  in  form,  the  trust 
for  the  charity  could  not  be  executed  on  account  of  its  vagueness  and 
uncertainty.    [See  also  infra,  §  159,  note.] 

2  Lloyd  V.  Spillett,  3  P.  Wms.  344;  Lewin  on  Trusts,  61. 

»  Lloyd  V.  Spillett,  2  Atk.  150,  Bam.  384;  Adlington  v.  Cann,  3  Atk. 
150. 

*  Boson  V.  Statham,  1  Eden,  513;  Thayer  v.  Wellington,  9  Allen,  283. 

*  29  Car.  II.  c.  3,  §  5. 

(a)  Upon  the  question  whether  a  v.  Kountze,  17  Tex.  Civ.  App.  402. 

check  drawn  upon  a  bank  may  be  In  an  article  in  36  Am.  L.  Reg.  n.  s. 

an  equitable  assignment  pro  tanto,  246,    289,    Mr.    Luther   E.    Hewitt 

see  Fourth  St.  Nat.  Bank  v.  Yardley,  maintains,    upon    a   review   of   the 

165  U.  S.  634;   Re  Griffin,    [1899]  authorities,    that   a   donatio   mortis 

1   Ch.   408;   Mclntyre  v.   Farmers'  ca (/so  may  be  well  executed  in  equity 

Bank,    115   Mich.   255;   Niblack   v.  upon  the  giving  of  a  check  by  the 

Park  Nat.  Bank,  169  111.  517;  Dick-  donor,  even  though  the  check  is  not 

insoQ  V.  Coates,  79  Mo.  250;  House  paid  or  presented  before  his  death. 

99 


§  00-]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

number  of  witnesses  required.  By  this  statute  nuncupative 
wills  of  personal  chattels  were  not  prohibited,  but  they  were 
placed  under  such  regulations  that  they  ceased  to  be  in  com- 
mon use.  Written  wills  of  personal  property  were  not  required 
to  be  attested  by  witnesses.  But  in  England  at  the  present 
time,  and  in  most  of  the  United  States,  a  will  to  pass  personal 
property  must  be  executed  with  the  same  formalities,  and  at- 
tested by  the  same  number  of  witnesses,  that  are  required 
to  wills  affecting  real  estate.^ 

§  90.  It  follows  from  these  statutes,  that  no  trusts  in  real 
or  personal  estate  can  be  created  by  any  declaration  of  trust 
in  a  will,  unless  the  will  is  executed  in  such  form  that  it  can 
be  allowed  in  the  court  of  probate  having  jurisdiction,  and  in 
such  form  that  it  will  pass  the  estate  that  it  is  intended  to 
operate  upon.  Mr.  Hill  lays  down  the  proposition,  that  if  an 
instrument  containing  a  declaration  of  trust  by  reason  of  some 
informality  cannot  be  supported  as  a  will,  it  may,  nevertheless, 
if  signed  by  the  party,  be  a  sufficient  evidence  of  the  creation 
of  the  trust  to  take  it  out  of  the  statute."    And  Lord  Northing- 

1  It  is  not  within  the  general  purposes  of  this  treatise  to  enter  into 
a  discussion  of  the  manner  of  executing  wills  in  England  and  the  several 
States  of  the  Union.  The  reader  will  find  the  laws  of  the  various  States 
fully  and  accurately  stated  in  the  learned  notes  of  the  Hon.  J.  C.  Perkins 
to  1  Jarman  on  Wills,  pp.  113-135  (4th.  Am.  ed.),  as  to  real  estate,  and 
pp.  135-144  as  to  personal  property. 

=  Hill  on  Trustees,  61.  Mr.  Hill  cites  Nab  v.  Nab,  10  Mod.  404,  1  Eq. 
Ca.  Ab.  404,  Gil.  Eq.  146.  The  case  was  this:  "A  daughter  put  into  her 
mother's  hands  £180,  and  afterwards  made  a  will,  which  was  duly  executed, 
and  appointed  her  mother  executrix,  but  made  no  mention  of  the  £180. 
After  making  the  will  she  desired  her  mother  to  give  the  money  to  a  third 
person.  After  the  death  of  the  daughter,  this  third  person  brought  a  bill 
in  chancery,  alleging  that  the  mother  held  this  money  in  trust.  The  mother 
admitted  the  trust  in  her  answer,  and  set  up  that  she  was  not  to  give  the 
money  except  at  her  option.  The  court  held  that  the  trust  was  admitted 
by  the  answer,  and  that  the  trust  should  be  executed.  It  will  be  observed 
that  the  question  as  to  a  will  informally  executed  did  not  arise.  The 
question  was  wholly  upon  the  effect  of  the  defendant's  answer  in  chancery. 
And  the  court,  as  reported  in  1  Eq.  Gas.  Ab.  404,  said  that  if  the  mother 
had  set  up  the  statute  of  frauds  the  trust  could  not  have  been  carried  into 
effect. 

100 


CHAP.  III.]  STATUTE    OF    WILLS.  [§  01. 

ton  declared  his  opinion  generally,  "that  a  writing  signed  by 
the  party  who  has  power  to  make  the  trust,  declaring  a  trust 
upon  the  will,  is  good,  though  such  writing  be  not  attested  by 
three  witnesses  according  to  the  solemnities  of  the  statute  of 
frauds."  ^  But  these  propositions,  in  the  broad  form  in  which 
they  are  stated,  are  clearly  not  law.  The  dictum  of  Lord  North- 
ington  stands  alone,  and  the  highest  authorities  are  in  opposi- 
tion to  it.^ 

§  91.  There  is  one  state  of  facts  in  which  the  above  propo- 
sition of  Mr.  Hill  may  be  good  law.  If  a  testator  in  making 
his  will  should  declal-e  by  way  of  recital  that  a  certain  parcel 
of  land,  or  sum  of  money,  was  held  by  him  upon  trusts  therein 
stated,  and  the  will  should  be  so  informally  executed  that  it 
could  not  be  proved  in  a  court  of  probate,  still,  if  it  was  signed 
by  him,  it  would  seem  to  be  as  good  proof  of  the  trust  as  letters 
and  other  memoranda  signed  by  the  party  and  found  after 
his  death,  (a)  In  such  case  the  will  could  have  no  effect  in 
creating  the  trust,  it  would  be  simply  proof  in  writing  of  a 
trust  already  created  and  existing  at  the  date  of  the  will.  But 
if  the  validity  of  the  trust  in  any  way  depended  upon  the  efl'ect 
of  the  will  in  transferring  the  title  to  the  property,  the  will 
could  not  be  used  in  evidence,  unless  it  was  itself  so  executed 
as  to  be  valid  as  a  will.^    In  all  cases  where  trusts  originate  in 

'  Boson  V.  Statham,  1  Eden,  514. 

2  Adlington  v.  Cann.  3  Atk.  151;  Muckleston  v.  Brown,  6  Ves.  67;  Stick- 
land  V.  Aldridge,  9  Ves.  519;  Puleston  v.  Puleston,  Finch,  312;  Thaj'cr  v. 
Wellington,  9  Allen,  283;  Burlington  University  v.  Barrett,  22  Iowa,  60. 
[Re  Smith;  Champ  i'.  Marshallsay,  64  L.  T.  13;  Leslie  v.  Leslie,  53  N.  J. 
Eq.  275.) 

^  Anding  v.  Davis,  38  Miss.  574. 

(a)  Leslie  v.  Leslie,  53  N.  J.  Eq.  ficient  writing  to  satisfy  the  statute 

275,    281;    McAidey's    Estate,    184  of  frauds;  and  the  revocation  of  the 

Pa.   St.   124;   Keith  v.   Miller,   174  will    and    its    destruction    did    not 

111.  64.    Thus  a  recital  in  a  will  that  prevent  its  contents  being  proved 

the  testator  holds  certain  property  by  parol  evidence  for  this  purpose, 

upon  trust  has  been  held  to  be  suf-  Hiss  v.  Hiss,  228  111.  414. 

101 


§  92.]  EXPRESS    TRUSTS,    ETC.  [CUAP.    III. 

a  will,  the  will  must  be  executed  according  to  tiie  statute,  or 
it  cannot  be  used  as  a  declaration  and  proof  of  the  trusts,  (a) 

§  92.  Mr.  Lewin  clearly  states  the  law  and  gives  the  reasons, 
as  follows:  "We  must  bear  in  mind  that  the  absolute  owner 
of  property  combines  in  himself  both  the  legal  and  equitable 
interest,  and  when  the  legislature  enacts  that  no  devise  or 
bequest  of  property  shall  be  valid  without  certain  ceremonies, 
a  testator  cannot  by  an  informal  instrument  affect  the  equitable 
any  more  than  the  legal  estate,  for  the  one  is  a  constituent  part 
of  the  ownership  as  much  as  the  other.  Thus  a  person  cannot, 
but  by  will  duly  signed  and  attested,  give  a  sum  of  money  origi- 
nally and  primarily  out  of  land ;  for  the  charge  is  part  of  the  land 
and  to  be  raised  out  of  it  by  sale  or  mortgage.^  And  if  a  testator 
by  will  duly  signed  and  attested  give  lands  to  A.  and  his  heirs 
*  upon  trust,'  but  without  specifying  the  particular  trust  intended 
and  then  by  a  paper  not  duly  signed  and  attested,  as  a  will  or 
codicil,  declare  a  trust  in  favor  of  B.,  the  beneficial  interest 
under  the  will  is  a  part  of  the  original  ownership,  and  cannot 
be  passed  by  the  informal  paper,  but  will  descend  to  the  heir- 
at-law\^  Again,  if  a  legacy  be  bequeathed  by  a  will  in  writing 
to  A. '  upon  trust,'  and  the  testator  by  parol  express  an  intention 
that  it  shall  be  held  by  A.  upon  trust  for  B.,  such  a  direction  is 

1  Brudenell  ;;.  Boughton,  2  Atk.  272. 
*  Adlington  v.  Cann,  3  Atk.  151. 

(a)  Thus  a  revoked  will  cannot  be  A  recital  in  a  will  that  the  tea- 
used  as  written  evidence  of  a  trust  tator  has  by  another  instrument 
in  property  conveyed  to  another  by  conveyed  certain  land  to  his  daugh- 
deed  absolute  in  form  and  not  re-  ter  as  an  advancement,  does  not 
ferring  to  the  will.  Davis  v.  Stam-  enable  her  to  claim  the  land  or  an 
baugh,  163  111.  557.  But  where  a  equitable  interest  in  it  when  she 
declaration  of  trust  refers  for  its  has  reconveyed  the  laud  to  him 
terms  to  a  certain  existing  will  of  without  reference  to  the  will.  Stod- 
the  grantor,  the  trust  rests  upon  the  der  v.  Hoffman,  158  111.  486.  And 
declaration  not  upon  the  will,  and  an  erroneous  recital  in  a  will  that  the 
revocation  of  the  will  can  have  no  testator  has  executed  a  deed  of  trust 
effect  upon  the  trust.  Kopp  v.  of  certain  property,  can  have  no 
Gunther,  95  Cal.  63.  effect.  Hunt  v.  Evans,  134  111.  496. 
102 


CHAP.  III.]  STATUTE    OF    WILLS.  [§  93. 

in  fact  a  testamentary  disposition  of  the  equitable  interest  in 
the  chattel,  and  therefore  void  by  the  statute,  which  imposes 
the  necessity  of  a  written  will.  If  it  be  said  that  such  expression 
of  intention,  though  void  as  a  devise  or  bequest,  may  yet  be 
good  as  a  declaration  of  trust,  and,  therefore,  that  where  the 
legal  estate  of  a  freehold  is  well  devised  a  trust  may  be  engrafted 
upon  it  by  a  single  note  in  writing;  and  where  a  personal  chattel 
is  well  bequeathed,  a  trust  of  it,  as  excepted  from  the  seventh 
section  of  the  statute  of  frauds,  may  be  raised  by  a  mere  parol 
declaration,  —  the  answer  is,  that  a  wide  distinction  exists 
between  testamentary  dispositions  and  declarations  of  trust. 
The  former  are  ambulatory  until  the  death  of  the  testator,  but 
the  latter  take  effect,  if  at  all,  at  the  time  of  the  execution.  'The 
deed,'  observed  Lord  Loughborough,  in  a  similar  case,  'is  built 
on  the  will;  if  the  will  is  destroyed,  the  deed  I  should  consider 
absolutely  gone;  the  will  without  the  deed  is  incomplete,  and 
the  deed  without  the  will  is  a  nullity.'  ^  And  Mr.  Justice  Duller 
observed,  'A  deed  must  take  place  upon  its  execution  or  not 
at  all;  it  is  not  necessary  for  a  deed  to  convey  an  immediate 
interest  in  possession,  but  it  must  take  place  as  passing  an 
interest  to  be  conveyed  at  the  execution :  but  a  will  is  quite  the 
reverse,  and  can  only  operate  after  death.'  ^  We  may  therefore 
safely  assume,  as  an  established  rule,  that  if  the  intended  dis- 
position be  of  a  testamentary  character  and  not  to  take  effect 
in  the  testator's  lifetime,  but  ambulatory  until  his  death,  such 
disposition  is  inoperative,  unless  it  be  declared  in  writing  in 
strict  conformity  with  the  statutory  enactments  regulating 
devises  and  bequests."  ^ 

§  93.  There  is  an  additional  reason  in  the  United  States 
why  a  will  or  testamentary  paper  informally  executed  cannot 
be  used  as  an  original  declaration  of  trust.  In  nearly  all  the 
United  States  no  will  can  be  used  to  prove  the  transfer  of  any 

*  Habergham  v.  Vincent,  2  Ves.  Jr.  209. 
»  Ibid. 

*  Lewin  on  Trusts,  66  (2d  Am.  ed.). 

103 


§  93.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

interest,  legal  or  equitable  in  property  of  the  testator,  unless 
such  will  has  been  duly  proved,  allowed,  and  recorded,  in  a  court 
of  probate  having  jurisdiction  over  it;  ^  and  if  such  will  is  to  be 
used  to  affect  the  title  to  property  in  any  State  other  than  the 
one  where  it  is  originally  proved,  it  must  be  recorded  in  such 
other  State;  ^  so  a  court  in  equity  has  no  jurisdiction  over  trusts 
created  by  the  will  of  a  foreigner,  a  certified  copy  of  which  is 
not  filed  in  the  probate  court  of  the  jurisdiction  where  the  remedy 
is  sought.^  But  no  will  can  be  proved  and  allowed  in  a  probate 
court  unless  it  is  duly  executed  under  the  statutes  in  force  where 
it  is  made.  This  rule  does  not  interfere  with  the  doctrine  that 
a  testator  may  by  his  last  will  refer  to  and  incorporate  therein 
any  document  or  paper  which  is  in  actual  existence  at  the  time, 
and  is  thus  made  a  part  of  his  will.^  In  such  cases,  all  such  papers 
must  be  clearly  identified  and  probated  and  recorded  with  the 
will  as  a  part  thereof,  and  such  papers  must  be  in  actual  exist- 
ence at  the  time  of  making  the  will.  If  they  are  made  after- 
wards, they  must  be  so  executed  that  they  may  be  probated 
as  a  revocation  of  the  will,  or  as  a  codicil  thereto,  or  they  will 
have  no  effect ;  ^  (a)  as  where  a  testator  made  an  absolute  devise 

1  Rex  V.  Netherseal,  4  T.  R.  258;  1  Wms.  Ex'rs,  172;  Strong  v.  Per- 
Idns,  3  N.  H.  517;  Kittredge  v.  Fulsome,  8  N.  H.  98;  2  Redf.  on  Wills,  10; 
Metham  v.  Devon,  1  P.  Wms.  529;  Inchiquin  v.  French,  1  Cox,  1.  And 
see  Mr.  Lewin's  remarks  upon  this  last  case,  Lewin  on  Trusts,  p.  49. 

2  Wilson  V.  Tappan,  6  Ohio,  172;  Bailey  v.  Bailey,  8  Ohio,  239;  Ives 
V.  Allyn,  12  Vt.  589;  Campbell  v.  Sheldon,  13  Pick.  8;  Campbell  v.  Wallace, 
10  Gray,  162;  2  Redf.  on  Wills,  10. 

3  Campbell  v.  Wallace,  2  Gray,  162. 

*  1  Wms.  Ex'rs,  289,  290,  and  notes;  Willington  v.  Adams,  1  V.  &  B. 
445;  Habergham  v.  Vincent,  2  Ves.  Jr.  228;  Smart  v.  Prujean,  6  Ves.  560; 
Goods  of  Lady  Truro,  L.  R.  1  P.  and  D.  201;  Doe  v.  Walker,  12  M.  & 
W.  591,  600;  In  re  Earle's  Trusts,  4  K.  &  J.  673;  Allen  v.  Maddock,  11 
Moore,  P.  C.  201;  Croker  v.  Hertford,  4  Moore,  P.  C.  339,  363;  Thayer 
V.  Willington,  9  Allen,  283.  [Locke  v.  Farmers'  L.  &  T.  Co.,  140  N.  Y.  135. 
See  also  Sullivan  v.  Sullivan,  (1903)  1  Ir.  R.  193.] 

*  Adhngton  v.  Cann,  3  Atk.  141-1.52;  Briggs  v.  Penny,  3  De  G.  &  Sm. 
547,  3  Mac.  &  G.  546;  8  Eng.  L.  &  Eq.  231;  Johnson  v.  Ball,  5  De  G.  & 

(o)  Where  a  will  devised  property  "to  be  disposed  of  by  him  as  I  have 
to  the  testator's  brother  in  trust     heretofore  or  may  hereafter  direct 

104 


CHAP.  III.]  STATUTE    OF   WILLS.  [§  93, 

of  an  estate,  and  left  a  declaration  of  trust  not  referred  to  in 
the  will,  and  not  duly  attested,  and  not  communicated  to  the 
devisee  nor  assented  to  by  him  in  the  testator's  lifetime,  the 
devisee  is  entitled  to  both  the  legal  and  beneficial  interest, 
because  it  is  a  good  devise  on  the  face  of  the  will,  and  the  in- 
formal declaration  of  trust  cannot  be  probated  or  admitted  in 
evidence.^     So,  if  a  testator  should  devise  real  or  personal 

Sm.  85;  Dawson  v.  DawBon,  1  Chev.  148;  Johnson  v.  Clarkson,  3  Rich.  Eq. 
305;  Thayer  v.  Willington,  9  Allen,  283.  How  far  papers  referred  to  in 
a  will  become  part  thereof  may  be  a  very  troublesome  question.  Statutes 
require  last  wills  to  be  solemnly  attested  or  witnessed  by  a  certain  number 
of  witnesses.  Whether  papers  referred  to  in  the  will  as  in  actual  existence 
but  not  attested  by  the  witnesses  can  be  probated,  and  if  they  cannot  be 
probated  whether  they  can  have  any  effect  upon  the  disposition  made  by 
the  will,  or  of  the  construction  of  it,  has  not  been  determined. 

»  Adhngton  v.  Cann,  3  Atk.  141;  Stickland  v.  Aldridge,  9  Ves.  519; 
Briggs  V.  Penny,  3  De  G.  &  Sm.  547;  3  Mac.  &  G.  546;  8  Eng.  L.  &  Eq. 
231;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Lee  v.  Ferris,  2  K.  &  J.  357;  Rus- 
sell V.  Jackson,  10  Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Brown  v. 
Brown,  12  Md.  87;  Thayer  v.  Willington,  9  Allen,  283;  Habergham  v. 
Vincent,  5  T.  R.  92,  2  Ves.  Jr.  204;  Rose  v.  Cunningham,  12  Ves.  29;  John- 
son V.  Ball,  5  De  G.  &  Sm.  85;  Langdon  v.  Astor,  3  Duer,  477;  Thompson 
V.  Quimby,  2  Brad.  449;  Tucker  v.  Seaman's  Aid  Soc,  7  Met.  404;   hi  re 

him  to  do,"  the  trust  is  not  suffi-  words  of  trust  or  limitation  in  the 

ciently  declared,  and  a  memorandum  will,    but   after    the    death    of    the 

in   writing  signed   by   the   testator  devisee  a  paper  signed  by  her  was 

will   not  be  available   to   cure  the  found   among  her  eflfects,   reading 

defects.     Heidenheimer  v.  Bauman,  as  follows:  "By  request  of  my  dear 

84  Tex.  174.    The  same  is  true  of  a  brother  my  house  on  Duquesne  Way 

bequest  in  trust  for  purposes  set  is  to  be  sold  at  my  death,  and  the 

forth  in  a  sealed  letter  "which  will  proceeds  to  be  divided  between  the 

be  found  with  this  will,"  since  the  Home   of    the    Friendless   and    the 

letter  was  not  incorporated  in  the  Home     for     Protestant     Destitute 

will  and  the  ownership  of  the  prop-  Women."  This  was  held  to  bean  ac- 

erty  was  not  intended  to  be  passed  knowledgment  in  writing  of  an  oral 

until    the    death    of    the    testator,  trust  which  had  been  imposed  upon 

Bryan  v.    Bigelow,   77   Conn.    604.  the  property  by  the  brother,  and  the 

To  the  same  eflfect    see    Payton  v.  trust  was   held    to    be    established 

Almy,  17  R.  I.  605;  Chase  v.  Stock-  by  this  evidence,  although  the  paper 

ett,  72  Md.  235,  243.  seems  not  to  have  been  delivered 

In    McAuley's   Estate,    184    Pa.  or  communicated  to  anybody  prior 

St.  124,  property  had  been  devised  to  the  sister's  death, 
to  a  sister  of  the  testator  with  no 

105 


§  94.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

property  to  A.  in  trust  and  state  no  trusts  upon  which  A.  is 
to  hold,  no  paper  not  referred  to  in  the  will,  and  not  duly  exe- 
cuted, could  be  received  in  evidence  to  prove  the  trusts,  nor 
could  A.  hold  the  beneficial  interest,  because  he  is  stamped 
with  the  character  of  a  trustee;  but  he  would  hold  only  the  legal 
title,  while  the  beneficial  interest  would  descend  or  result  to 
the  testator's  heirs-at-law.^  (a)  But  if  any  words  in  the  will 
itself  clearly  qualify  an  absolute  devise  in  the  will,  and  show 
the  testator's  intent  that  others  should  share  the  property,  the 
devisee  holds  in  trust.^ 

§  94.  Even  at  common  law  parol  evidence  could  not  be 
received  to  convert  a  devisee  under  a  will  in  writing  into  a 
trustee.  In  Vernon's  Case  it  was  resolved  that  a  devise  implies 
a  consideration,  and  therefore  that  it  cannot  be  averred  or 
proved  by  parol  to  be  for  the  use  of  another;  ^  "for  that,"  said 
Lord  Ch.  R.  Gilbert,  "were  an  averment  contrary  to  the  design 
of  the  will  appearing  in  the  words;  "  ^  and  in  Lady  Portington's 
Case,  the  court  refused  to  receive  parol  evidence,  not  only  be- 
cause of  the  statute  of  frauds,  but  also  from  the  nature  of  the 
thing}     For  the  same  reason,  at  common  law  parol  evidence 

Sothron,  2  Curteis,  831;  Ferraris  v.  Hertford,  3  Curteis,  468;  Waggstaffy. 
Wagg3taff,  2  P.  Wms.  258;  Marlborough  v.  Godolphin,  2  Ves.  Sr.  76. 

1  Muckleston  v.  Brown,  6  Ves.  52;  Boson  v.  Statham,  1  Ed.  513. 
[Chase  v.  Stockett,  72  Md.  235;  243;  Bryan  v.  Bigelow,  77  Conn.  604; 
Heidenheimer  v.  Bauman,  84  Tex.  174;  See  also  Payton  v.  Almy,  17  R.  I. 
605;  Kelly  v.  Nichols,  17  R.  I.  306,  18  R.  I.  62.] 

2  Major  V.  Hemdon,  78  Ky.  128. 
^  Vernon's  Case,  4  Coke,  R.  4  a. 
*  Gilbert  on  Uses,  162. 

^  Lady  Portington's  Case,  1  Salk.  162.  It  is  stated  by  Jenkins  that 
at  common  law  parol  proof  might  be  received  to  engraft  a  trust  upon  a 
written  will.  Jenk.  3  Cent.  Cas.  26.  But  by  comparing  the  case  cited 
by  Jenkins  with  the  same  case  in  Fitzherb.  Ch.  Devise,  22,  it  will  be  seen 

(a)  In  this  respect  a  devise  or  be-  from  taking  the  absolute  title  since 

quest  differs  from  a  deed.  In  the  lat-  no  trust  will  usually  result  for  the 

ter  a  mere  description  of  the  grantee  grantor.     Hart  v.  Seymour,  147  111. 

as  trustee  without  other  declaration  598. 
of  the  trust  will  not  prevent  him 
106 


CHAP,  m.]  STATUTE   OF   WILLS.  [§  95, 

of  a  trust  was  always  inadmissible  against  a  legatee  under  a 
written  will.^  Until  a  late  statute  ^  in  England  a  person  ap- 
pointed executor  had  the  title  to  all  the  personal  property,  and 
was  entitled  to  take  the  surplus,  after  paying  debts  and  legacies, 
beneficially  to  himself,  and  no  parol  evidence  was  admissible 
to  convert  him  into  a  trustee  for  the  heirs  or  next  of  kin.^  But 
the  authorities  seem  to  establish  that  if  there  was  any  circum- 
stance appearing  on  the  face  of  the  will,  as  the  gift  of  a  legacy 
to  the  executor,  the  law  presumed  that  it  was  not  intended  that 
he  should  take  the  surplus  beneficially;  the  executor  might 
rebut  that  presumption  by  parol  evidence,'*  when,  of  course, 
the  next  of  kin  might  fortify  the  presumption  by  opposing 
parol  evidence  in  contradiction.  Where,  however,  the  will 
itself  invested  the  executor  with  the  character  of  trustee,  as 
by  giving  him  a  legacy  "for  his  trouble,"  or  by  styling  him  a 
"trustee"  expressly,  the  prima  facie  title  to  the  surplus  was 
then  in  the  next  of  kin,  and  parol  evidence  was  not  admissible 
to  disprove  the  express  intention.^  By  the  act  referred  to  in 
England,  and  by  statutes  in  all  the  United  States,  an  executor 
is  made  prima  facie  a  trustee  for  the  next  of  kin.^ 

§  95.  Where  an  agreement  is  entered  into  for  a  valuable  and 
legal  consideration,  and  a  trust  is  intended,  the  mere  form  of 

that  Jenkins  was  mistaken  in  the  point  decided.  And  see  Lewin  on  Trusts, 
58  (2d.  Am.  ed.). 

1  Porey  v.  Ju.xon,  Nels.  135;  Fane  v.  Fane,  1  Vern.  30. 

2  11  Geo.  IV.  and  I  W.  IV.  c.  40. 

'  Langham  v.  Sandford,  19  Ves.  641;  White  v.  Williams,  3  Ves.  &  B. 
72;  Coop.  58. 

'  Walton  V.  Walton,  14  Ves.  322;  Clennell  v.  Lewthwaite,  2  Ves.  Jr. 
477;  Langham  v.  Sandford,  17  Ves.  442;  Lynn  v.  Beaver,  1  T.  &  R.  66. 

*  Rachfield  v.  Careless,  v.  P.  Wms.  158;  Langham  v.  Sandford,  17  Ves. 
435;  19  Ves.  641;  Gladding  v.  Yapp,  5  Mad.  42;  White  v.  Evans,  14  Ves. 
21;  Walton  v.  Walton,  id.  322;  Read  v.  Steadman,  26  Beav.  495.  [See  In 
re  West,  [1900]  1  Ch.  84.] 

"  Love  V.  Gaze,  8  Beav.  472;  Juler  i».  Juler,  29  Beav.  34;  Harrison  v. 
Harrison,  2  Hem.  &  Mill.  237;  Read  v.  Steadman,  26  Beav.  495;  Hill  v. 
Hill,  2  Hayw.  298;  Paup  v.  Mingo,  4  Leigh,  163;  Hays  v.  Jackson,  6  Mass. 
153;  Wilson  v.  Wilson,  3  Bin.  559;  Darrah  v.  McNair,  1  Ash.  240;  2  Story's 
Eq.  Jur.  §§  1208-1210,  and  notes;  Lcwin  on  Trusts,  50. 

107 


§  95.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

the  instrument  is  not  very  material;  for  if  the  trust  is  not  per- 
fectly created  or  executed  by  the  instrument,  a  court  of  equity 
can  enforce  it  as  a  contract.^  Where  a  husband  had  treated 
his  wife  with  extreme  cruelty,  so  that  she  left  him  and  instituted 
proceedings  for  a  divorce,  and  he  gave  a  note  to  a  trustee  for 
his  wife,  in  consideration  of  her  giving  up  the  said  suit  and 
resuming  cohabitation  with  him,  it  was  held  that  the  considera- 
tion was  illegal;  but  the  dissent  by  Holmes  is  far  weightier  than 
the  majority  opinion.^  If  a  deed  is  given  by  B.  to  A.  on  condition 
that  A.  will  support  B.  and  C,  a  trust  is  created  that  equity 
will  enforce.^  (a)  Wherever  a  valuable  consideration  is  paid, 
the  contract  will  be  executed  as  near  to  the  intention  of  the 
parties  as  possible;  as  where  for  a  valuable  consideration  a  man 
executed  a  deed  of  land  purporting  to  be  under  his  hand  and 
seal,  but  no  seal  was  affixed,  by  reason  of  which  defect  the  legal 
title  did  not  pass,  the  court  held  that  the  defective  deed  might 
be  used  as  a  declaration  of  trust,  and  that  the  holder  of  the  legal 
title  should  hold  it  in  trust  for  the  grantee  in  the  deed,  and  that 
he  should  be  ordered  to  convey;^  and  where  a  husband  for  a 
meritorious  consideration  conveyed  pesonal  property  directly 
to  his  wife  by  deed,  which  could  not  operate,  because  a  husband 

1  Baldwin  v.  Humphrey,  44  N.  Y.  609;  Taylor  v.  Pownal,  10  Leigh,  183. 
[See  Williamson  v.  Yager,  91  Ky.  282;  Whitehouse  v.  Whitehouse,  90  Me. 
468;  Collins  v.  Steuart,  58  N.  J.  Eq.  392;  Leef.  Hamilton,  218  Pa.  St.  468; 
Landon  v.  Hutton,  50  N.  J.  Eq.  500;  Norway  Sav.  Bank  v.  Merriam,  88 
Me.  146.] 

2  Merrill  v.  Peaselee,  146  Mass.  460.  [See  Whitehouse  v.  Whitehouse, 
90  Maine,  468.1 

3  Benscotter  v.  Green,  60  Md.  327.  [Koch  v.  Streuter,  232  111.  594; 
See  Grote  v.  Grote,  106  N.  Y.  S.  986,  121  App.  Div.  841.] 

*  Wadsworth  v.  Wendell,  5  Johns.  Ch.  224;  Haskill  v.  Freeman,  1  Wins. 
Eq.  (N.  C.)  34. 

(a)  But  an  agreement  to  support  ments  or  unless  words  of  condition 

the  grantor  or  others,  or  to  pay  money  are   used.     Maxwell    v.  Wood,    133 

in  consideration  of  the  conveyance  Iowa,  721;  Riddle  i).  Beattie,  77  Iowa, 

does  not  create  a  trust,  unless  it  is  168;  Faust  v.  Faust,  144  N.  C.  383; 

apparent  that  the  grantor  intended  Fellows  v.  Fellows,  69  N.  H.  339; 

to  charge  the  property  with  the  pay-  Hanks  v.  Hanks,  75  Vt.  273. 

108 


CHAP.  III.]  VALUABLE    CONSIDERATION.  [§  95. 

cannot  convey  directly  to  his  wife,  the  court  ordered  the  deed 
to  stand  as  a  declaration  of  trust  for  the  wife,  and  the  hus- 
band's representatives  to  hold  the  legal  title  in  trust  for  her.^  (a) 
The  authorities  establish  this  proposition,  that  where  there  is  a 
valuable  consideration  the  court  will  enforce  the  trust,  though 
it  is  not  perfectly  created,  and  thougii  the  instruments  do  not 
pass  the  title  to  the  property,  if  from  the  documents  the  court 
can  clearly  perceive  the  terms  and  conditions  of  the  trust,  and 
the  parties  to  be  benefited.  In  such  cases,  effect  is  given  to 
the  consideration  to  carry  out  the  intentions  of  the  parties, 
though  informally  expressed.  But  if  no  cestui  que  trust  is 
named,  or  so  designated  that  he  can  be  identified,  the  court 
cannot  carry  a  trust  into  effect,  however  clearly  it  may  be 
created  in  other  respects.^  Even  if  a  purchaser  of  land  direct 
a  declaration  of  trust  to  be  inserted  in  the  deed  to  him,  he  will 
be  bound  by  it,  though  it  is  voluntary  on  his  part.^  And  if  no 
trustee's  name  is  inserted  in  the  deed,  it  may  be  reformed,  and 
a  suitable  trustee  may  be  appointed  and  inserted.^  (6) 


^  Huntley  v.  Huntley,  8  Ired.  Eq.  250;  Livingston  v.  Livingston,  2  Johns. 
Ch.  537;  Garner  v.  Gamer,  1  Busb.  Eq.  1;  Jones  v.  Obinchain,  10  Grat. 
259;  Fellows  v.  Heermans,  4  Lans.  230.  [Keffer  v.  Graj'son,  76  Va.  523; 
Sayers  v.  Wall,  26  Grat.  354;  Sims  v.  Ricketts,  35  Ind.  181;  Carter  v.  Mc- 
Neal,  86  Ark.  150;  But  see  contra,  Moore  v.  Moore,  18  Eq.  474,  43  L.  J. 
Ch.  617;    See  also  §§  108,  109.] 

2  Dillage  v.  Greenough,  45  N.  Y.  438;  Ownes  v.  Ownes,  23  N.  J.  Eq.  60. 
[Kelly  V.  Nichols,  17  R.  L  306;  18  R.  L  62;  Atwater  v.  Russell,  49  Minn. 
57;  Filkins  v.  Severn,  127  Iowa,  738.] 

3  Reilly  v.  Whipple,  2  S.  C.  277. 

*  Bumside  v.  Wayraan,  49  Mo.  356. 

(a)  In  Stark  v.  Kirchgraber,  186  (b)  A  trust  deed  to  secure  credit- 
Mo.  633,  the  same  waa  held  true  ors  of  the  grantor  in  which  the 
where  a  husband  executed  and  trustee's  name  has  been  omitted  luus 
deUvered  a  warranty  deed  of  land  been  treated  as  an  equitable  mortgage 
directly  to  his  wife;  and  it  was  fur-  on  the  application  of  a  cestui  que 
ther  held  that  on  the  death  of  the  iriist.  Dulaney  v.  Willis,  95  Va.  606. 
wife  the  trust  became  executed  by  See  also  Dunn  v.  Raley,  58  Mo. 
the  statute  of  uses  and  the  legal  134. 
title  vested  in  her  heirs. 

100 


§  96.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

§  96.  And  where  there  is  no  valuable  consideration,  yet  if  the 
settlor,  by  a  clear  and  explicit  declaration  duly  executed  and 
intended  to  be  final  and  binding  upon  him,  makes  himself  a 
trustee,  courts  of  equity  will  enforce  the  trust,  whether  the 
nature  of  the  property  be  legal  or  equitable,  and  whether  it  be 
capable  or  incapable  of  transfer.^  If  it  is  a  mere  agreement, 
without  consideration,  to  execute  a  declaration  of  trusts,  courts 
will  not  act  upon  it;  but  if  a  party  has  declared  himself  to  be  a 
trustee,  the  beneficial  interest  in  the  property  becomes  vested 
in  the  cestui  que  trust  without  further  action,  and  the  cestui  que 
trust  can  enforce  his  rights.^  (a) 

1  Ex  parte  Pye,  18  Ves.  140;  Thorpe  v.  Owen,  5  Beav.  224;  Wilcocks 
V.  Hannyngton,  5  Ir.  Ch.  38;  Draiser  v.  Brereton,  15  Beav.  221;  Gray  v. 
Gray,  2  Sim.  (n.  s.)  273;  Vandenburg  v.  Palmer,  4  Kay  &  J.  204;  Staple- 
ton  V.  Stapleton,  14  Sim.  186;  Searle  v.  Law,  15  Sim.  99;  Bridge  v.  Bridge, 
16  Beav.  315;  Steele  v.  Waller,  28  Beav.  466;  Paterson  v.  Murphy,  11  Hare, 
88;  Bentley  v.  MacKay,  15  Beav.  12;  Ownes  v.  Ownes,  23  N.  J.  Eq.  60; 
Crawford's  App.  61  Penn.  St.  52;  Morgan  v.  Malleson,  L.  R.  10  Eq.  475; 
McFadden  v.  Jenkyns,  1  Hare,  471.  In  the  last  case.  Sir  J.  Wigram  said 
"If  the  owner  of  property  executes  an  instrument  by  which  he  declared  him- 
self a  trustee,  and  had  disclosed  that  instrument  to  the  cestui  que  trust,  and 
afterwards  acted  upon  it,  that  might  perhaps  be  suflBcient,  and  a  court  of 
equity  might  not  be  bound  to  inquire  further  into  an  equitable  title  so 
estabUshed."  Mr  Lewin  says  that  this  is  "expressed  with  unnecessary 
caution."  Lewin  on  Trusts,  57.  The  contrary  was  held  in  Bowering  v. 
King,  37  Ala.  606;  Walker  v.  Crews,  73  Ala.  412,  417. 

*  Ex  parte  Pye,  18  Ves.  149;  Gee  v.  Liddell,  35  Beav.  621.  To  create 
a  trust,  a  man  must  express  an  intention  to  become  a  trustee;  and  words 
that  express  a  present  gift  show  an  intention  to  give  property  over  to 
another,  and  not  to  retain  it  in  the  donor's  hands  for  any  purpose,  fidu- 
ciary or  otherwise.  Heartley  v.  Nicholson,  L.  R.  19  Eq.  244;  Richards 
V.  Delbridge,  L.  R.  18  Eq.  11;  Ellison  v.  Ellison,  6  Ves.  656.  If  one  mode 
of  transfer  is  indicated,  the  court  wiU  not  give  effect  to  it  by  applying 
another.  Milroy  v.  Lord,  2  De  G.,  F.  &  J.  264;  Warriner  v.  Rogers,  L.  R.  10 
Eq.  340. 

(a)  A    voluntary    settlement    in  F.  &  J.  264;  Welch  v.  Henshaw,  170 

trust  may  be  created  either  by  trans-  Mass.  409,  415;  Smith's  Estate,  144 

ferring  the  property  to  another  to  Pa.  St.  428;  O'Neil  v.  Greenwood, 

hold  in  trust  or  by  a  declaration  of  106  Mich.  572.     In  the  former  case 

the  settlor  himself  that  he  holds  the  the  legal  title  passes  to  the  trustee 

property  in  trust  for  named  bene-  and    the    beneficial    interest    vests 

ficiaries.     Milroy  v.  Lord,  4  De  G.,  in   the  cestuis.     In  the  latter  case 

110 


CHAP.  III.] 


VOLUNTARY   SETTLEMENTS. 


[§97. 


§  97.    If  the  donor  or  settlor  does  not  propose  to  make  him- 
self a  trustee,  the  trust  is  not  perfectly  created.    As  where  there 


only  the  beneficial  interest  passes. 
As  the  transfer  is  without  consider- 
ation equity  will  not  lend  its  aid 
in  either  case  to  complete  it  if  any 
essential  is  omitted,  however  clear 
may  be  the  intention  of  the  donor. 
An  incomplete  gift  will  not  be  given 
effect  aa  a  trust  unless  a  trust  in 
substance  was  intended  by  the 
donor.  Ashman's  Estate,  223  Pa. 
St.  543.  Thus  where  the  donor  in- 
tends to  pass  title  to  the  donee  by 
way  of  gift,  but  fails  to  do  so,  even 
inadvertently,  by  failure  to  dehver, 
he  will  not  be  construed  to  be  a 
trustee  in  order  to  carry  out  his  in- 
tention. Stokes  V.  Sprague,  110 
Iowa,  89;  Young  v.  Young,  80  N.  Y. 
422.  As  where  a  husband  attempted 
to  make  a  gift  to  his  wife  by  delivery, 
Moore  v.  Moore,  18  Eq.  474,  43 
L.  J.  Ch.  617.  In  re  Breton's  Es- 
tate, 17  Ch.  Div.  416  and  Ames' 
Cases,  p.  175,  note.  See  also  Wells 
V.  German  Ins.  Co.,  128  Iowa,  649. 
(But  see  contra,  authorities  cited  in 
note  1  on  page  109),  or  where  the 
donor  deUvers  to  his  own  agent  to 
deliver  to  the  donee  after  the  do- 
nor's death,  retaining  meanwhile  the 
right  to  recall  the  gift.  Re  Smith. 
Champ  V.  Marshallsay,  64  L.  T.  13; 
Godard  v.  Conrad,  125  Mo.  App. 
165;  Gannon  v.  McGuire,  47  N.  Y.  S. 
870,  22  App.  Div.  43.  Compare 
Bump  V.  Pratt,  84  Hun,  201. 

A  written  instrument  of  transfer 
or  assignment  which  is  not  effective 
as  such  because  not  delivered  will 
not  be  construed  to  be  a  declaration 
of  trust.  Wadd  v.  Hazelton,  137 
N.  Y.  215;  Starbuck  v.  Farmers' 
L.  &  T.  Co.,  51  N.  Y.  S.  58,  28  App. 


Div.  272;  Clay  v.  Layton,  134  Mich. 
317,  (Compare  with  O'Neil  v. 
Greenwood,  106  Mich.  572  and  EUis 
V.  Secor,  31  Mich.  185);  Norway 
Sav.  Bank  v.  Merriam,  88  Me.  146. 
An  attempted  gift  of  the  donor's 
own  promissory  note  will  not  be 
construed  to  be  a  declaration  of 
trust  as  to  the  amount  of  the  note; 
Sanborn  v.  Sanborn,  65  N.  H.  172; 
Graves  v.  Safford,  41  111.  App.  659; 
and  the  same  has  been  held  true 
of  an  unaccepted  check.  Pennell 
V.  Ennis,  126  Mo.  App.  355. 

A  voluntary  deed  of  transfer  in 
trust  signed,  sealed  and  recorded 
but  not  delivered  has  been  held  to 
be  ineffectual  to  create  a  trust  either 
by  grant  or  as  a  declaration  to  stand 
seized.  Loring  v.  Hildreth,  170 
Mass.  328.  But  it  has  been  held  in 
Tarbox  v.  Grant,  56  N.  J.  Eq.  199, 
that  the  mere  failure  to  deliver  such 
a  deed  will  not  prevent  it  from 
operating  in  case  of  a  family  settle- 
ment. And  it  has  been  held  in  a 
recent  English  case  that  a  voluntary 
deed  of  transfer  to  another  to  hold 
upon  trusts  by  way  of  settlement, 
unsigned  by  the  grantee,  undelivered 
and  expressly  disclaimed  by  him, 
creates  an  irrevocable  trust,  the 
settlor  himself  being  the  trustee 
after  the  disclaimer.  Mallott  v. 
Wilson  [1903],  2  Ch.  494.  See  also 
Jones  V.  Jones,  W.  N.  (1874)  190. 
Deliver>'  will  ordinarily  be  pre- 
sumed as  against  the  settlor  if  the 
deed  has  been  duly  executed  and 
recorded,  but  the  presumption  may 
be  rebutted.  Chilversr.  Race,  196111. 
71 ;  Walker  v.  Crews,  73  Ala.  412, 417. 

The  general  rule  has  been  well 

111 


§97.] 


EXPRESS    TRUSTS,    ETC. 


[chap. 


III. 


is  a  mere  intention  of  creating  a  trust,  or  a  mere  voluntary  agree- 
ment to  do  so,  and  the  donor  or  settlor  contemplates  some 


stated  in  Milroy  v.  Lord,  4  De  G., 
F.  &  J.  264.  It  was  there  said  that  a 
settlor  may  create  a  voluntary 
settlement  "by  actually  transferring 
the  property  to  the  persons  for  whom 
he  intends  to  provide,  and  the 
provision  will  then  be  effectual,  and 
it  will  be  equally  effectual  if  he  trans- 
fers the  property  to  a  trustee  for  the 
purposes  of  the  settlement  or  de- 
clares that  he  holds  it  in  trust  for 
those  purposes;  .  .  .  but  in  order 
to  render  the  settlement  binding 
one  or  other  of  these  modes  must,  aa 
I  understand  the  law  of  this  court, 
be  resorted  to,  for  there  is  no  equity 
in  this  court  to  perfect  an  imperfect 
gift.  The  cases,  I  think,  go  further 
to  this  extent,  that  if  the  settlement 
is  intended  to  be  effectuated  by 
one  of  the  modes  to  which  I  have 
referred,  the  court  will  not  give  it 
effect  by  implying  another  of  those 
modes."  See  also  Welch  v.  Hen- 
shaw,  170  Mass.  409,  415,  where 
the  above  extract  is  quoted  with 
approval  as  a  correct  statement  of 
the  law. 

In  Pittman  v.  Pittman,  107  N.  C. 
159,  it  was  held  that  a  written  but 
unsealed  declaration  by  the  owner 
of  land  to  the  effect  that  she  held 
the  title  for  the  benefit  of  the  person 
who  had  previously  conveyed  it  to 
her  and  promising  to  reconvey  it 
upon  request,  did  not  create  a  trust 
which  equity  would  enforce  in  the 
absence  of  a  consideration  and  the 
declaration  not  being  contempora- 
neous with  the  conveyance  to  her. 
The  common  law  rule  was  stated  to 
be  that  "no  use  or  trust  can  be 
raised  in  lands  without  a  consider- 

112 


ation,  except  in  the  single  instance 
of  a  conveyance  operating  by  trans- 
mutation of  possession,  the  charac- 
ter of  the  conveyance  alone  being 
sufficient  to  raise  the  use,  and  to 
dispense  with  the  necessity  of  a 
consideration." 

In  cases  of  voluntary  parol  dec- 
larations of  trust  as  to  personalty 
wherein  a  donor  attempts  to  make 
himself  trustee  for  another  without 
delivery  of  the  property,  the  deci- 
sions show  some  difference  of  opin- 
ion as  to  the  necessity  of  giving 
notice  to  the  beneficiary.  In  Massa- 
chusetts it  seems  to  be  settled  law 
that  such  a  declaration  of  trust  is 
not  effectual  to  pass  any  beneficial 
interest  if  it  is  not  communicated  to 
the  beneficiary  or  to  somebody  in 
his  behalf.  Welch  v.  Henshaw,  170 
Mass.  409,  415;  Bojoiton  v.  Gale, 
194  Mass.  320.  Thus  it  has  been 
held  in  savings  bank  cases  that  the 
communication  of  the  declaration  of 
trust  to  the  bank  is  not  enough, 
even  when  it  is  shown  by  other  evi- 
dence that  a  gift  of  the  beneficial 
interest  was  intended.  Scrivens  v. 
No.  Easton  Sav.  Bank,  166  Mass. 
255;  Noyes  v.  Inst,  for  Savings,  164 
Mass.  583;  Cleveland  v.  Hampden 
Sav.  Bank,  182  Mass.  110.  The 
position  taken  by  the  court  is  that  a 
person  cannot  make  a  gift  of  any 
interest  in  property  without  delivery 
unless  he  informs  the  donee  or  at 
least  somebody  whose  interest  is  op- 
posed to  that  of  the  donor.  For 
opinions  in  other  States  which  seem 
to  favor  the  view  of  the  Massachu- 
setts court,  see  Burton  v.  Bridge- 
port   Sav.    Bank,    52    Conn.    398; 


CHAP.  III.] 


VOLUNTARY    SETTLEMENTS. 


[§97. 


further  act  to  be  done  by  him  to  give  it  effect,  the  trust  is  not 
completely  instituted;  and  if  it  is  voluntary,  the  settlor  cannot 


Casteel  v.  Flint,  112  Iowa,  92; 
Marcy  v.  Amazeen,  61  N.  H.  131; 
Bartlett  v.  Remington,  59  N.  H. 
364;  People's  Sav.  Bank  v.  Webb, 
21  R.  I.  218. 

The  courts  of  New  York  differ 
from  the  Massachusetts  courts  in 
respect  to  savings  bank  deposits, 
holding  that  the  communication  to 
the  officers  of  the  bank  is  sufficient. 
Matter  of  Totten,  179  N.  Y.  112; 
Matter  of  U.  S.  Trust  Co.,  117  App. 
Div.  178,  102  N.  Y.  S.  271;  Garvey 
V.  Clifford,  114  App.  Div.  193,  99 
N.  Y.  S.  555;  Martin  v.  Funk,  75 
N.  Y.  134;  Mabie  v.  Bailey,  95  N.  Y. 
207;  Willis  v.  Smyth,  91  N.  Y.  297. 
And  the  majority  of  decisions  in 
other  States  are  in  accord  with  this 
view.  Sayre  v.  Weil,  94  Ala.  466; 
Sav.  Inst.  V.  Hathorn,  88  Me.  122; 
Milholland  v.  Whalen,  89  Md.  212; 
Littig  V.  Mt.  Calvary  Church,  101 
Md.  494;  Merigan  v.  McGonigle,  205 
Pa.  St.  321;  Gaffney's  Estate,  146 
Pa.  St.  49;  Conn.  River  Bank  v. 
Adm'r  of  Albee,  64  Vt.  571.  Supra, 
§  82,  note.  But  the  New  York 
courts  seem  to  agree  with  the  Mas- 
sachusetts court  to  the  extent  that 
the  declaration  which  purports  to 
create  the  trust  must  be  communi- 
cated to  somebody.  Thus  in  Govin 
V.  De  Miranda,  76  Hun,  414,  it  was 
said:  "In  no  case  has  it  ever  been 
held  as  yet  that  a  party  may,  by 
transferring  his  property  from  one 
pocket  to  another,  make  himself  a 
trustee.  In  every  case  where  a 
trust  has  been  established  the 
party  creating  it  has  placed  the 
evidence  thereof  in  the  custody 
of  another,  and  has  thereby  shown 


that  it  was  intended  to  be  a 
completed  act."  In  this  case  there 
was  an  undelivered  instrument 
under  seal  purporting  to  transfer 
to  D.  certain  bonds,  the  bonds  to 
remain  in  the  custody  of  the  signer 
as  trustee  for  D.  This  instrument 
was  found  among  the  papers  of  the 
signer  after  his  death.  The  opinion 
discusses  a  previous  case  of  Govin 
V.  De  Miranda,  140  N.  Y.  476,  in- 
volving different  facts.  In  the  last 
cited  case  another  waiting  was 
found  among  the  papers  of  the  de- 
ceased stating  that  certain  property 
in  his  possession  belonged  to  certain 
persons.  Although  this  wTiting  had 
not  been  delivered  it  was  held  to  be 
good  evidence  of  what  it  stated;  it 
did  not  purport  to  create  a  trust  or 
to  make  a  transfer,  but  was  merely 
an  acknowledgment  of  an  already 
existing  interest  in  somebody  else. 

Cases  of  this  sort  are  distinguish- 
able from  cases  of  undelivered 
declarations  referred  to  in  a  will 
subsequently  made,  and  incorpor- 
ated in  the  will  by  reference.  Such 
declarations  take  effect  as  part  of 
the  will.  Locke  v.  Farmers'  L.  &  T. 
Co.,  140  N.  Y.  135. 

Doubtless  it  would  be  generally 
held,  where  a  settlor  has  by  a  formal 
instrument  declared  himself  a  trus- 
tee, the  form  of  the  instrument  not 
requiring  delivery,  that  neither 
delivery  to  the  beneficiary  nor 
notice  to  him  is  necessarj'  in  order 
to  perfect  the  trust.  Thus  in  Smith's 
Estate,  144  Pa.  St.  428,  full  effect 
was  given  to  a  voluntary  declar- 
ation of  trust  found  after  the  settlor's 
death    among    his    papers    in    an 

113 


§97.] 


EXPRESS   TRUSTS,    ETC. 


[chap.  III. 


be  compelled  to  complete  it.^  (a)    So  if  the  paper  executed  by 
the  settlor  is  in  the  nature  of  a  testamentary  disposition  which 

'  Lloyd  V.  Brooks,  34  Md.  33;  Swan  v.  Frick,  id.  139;  Cotteen  v.  Mis- 
sing, 1  Mad.  176;  Bayley  v.  Boulcott,  4  Russ.  345;  Dipple  v.  Corles,  11 
Hare,  183;  Jones  y.  Lock,  L.  R.  1  Ch.  25;  Caldwell  v.  Williams,  1  Bailey, 
Eq.  175;  Crompton  v.  Vasser,  19  Ala.  259;  Hayes  v.  Kershaw,  1  Sand. 
Ch.  258;  Reid  v.  Vanarsdale,  2  Leigh,  560;  Evans  v.  Battle,  19  Ala.  378; 
Pinkard  v.  Pinkard,  2  Ala.  649;  Mintum  v.  Seymour,  4  Johns.  Ch.  498. 
Acker  t;.  Phoenix,  4  Paige,  305;  Dawson  v.  Dawson,  1  Dev.  Eq.  93;  Banks 
V.  May,  3  A.  K.  Marsh,  435;  Bibb  v.  Smith,  1  Dana,  580;  Darlington  v. 
McCoole,  1  Leigh,  36;  Tieman  v.  Poor,  1  Gill  &  J.  217;  Forward  v.  Arm- 
stead,  12  Ala.  124;  Lawry  v.  McGee,  3  Head,  269;  Lister  v.  Hodgson,  L. 
R.  4  Eq.  30;  Dillinger  v.  Llewelyn,  4  De  G.,  F.  &  J.  517;  Gardner  v.  Merritt, 
32  Md.  78;  Lanterman  v.  Abernathy,  47  111.  437;  Shaw  v.  Bumey,  1  Ired. 
Eq.  148;  Clarke  v.  Lott,  11  111.  105;  Read  v.  Robinson,  6  W.  &  S.  338; 
Yarborough  V.  West,  10  Ga.  471;  Colman  v.  Sarel,  3  Bro.  Ch.  12;  Antrobus 
V.  Smith,  12  Ves.  39;  Edwards  v.  Jones,  1  M.  &  Cr.  226;  Dillon  v.  Coppin, 
4  id.  647;  Jefferys  v.  Jefferys,  1  Cr.  &  Phil.  138;  Penfold  v.  Mould,  L.  R. 
4  Eq.  562;  Disher  v.  Disher,  1  P.  Wms.  204.  [Gwynn  v.  Gwynn,  11  App. 
D.  C.  564.] 


envelope  with  the  property  de- 
scribed, the  intention  of  the  settlor 
to  create  a  trust  and  his  belief  that 
he  had  done  so  being  shown  by 
other  evidence.  The  court  sums 
up  its  discussion  as  follows:  "The 
question  in  such  case  is  not  so  much 
whether  in  the  lifetime  of  the 
decedent  the  declaration  was  ac- 
tually exhibited  to  the  inspection 
of  others,  as  whether  under  all  the 
circumstances  of  the  case,  it  would 
appear  to  have  been  written  and 
preserved  for  the  inspection  of 
others."  See  also  Johnson  v.  Amber- 
son,  140  Ala.  342;  Eshbach's  Estate, 
197  Pa.  St.  153;  Fowler  v.  Gowing, 
152  Fed.  801  (N.  Y.);  ColUns  v. 
Steuart,  58  N.  J.  Eq.  392;  Janes 


V.  Falk,  50  N.  J.  Eq.  468.  See  also 
§  103  and  note  2.  It  is  said  in  Lan- 
don  V.  Hutton,  50  N.  J.  Eq.  500, 
p.  508:  "It  is  to  be  observed  that 
there  exists  a  distinction  between 
the  cases  in  which  the  donor  or 
settlor  holding  the  legal  title  un- 
equivocally declares  himself  to  be 
the  trustee,  and  the  cases  in  which, 
otherwise  than  by  will,  he  makes  a 
stranger  the  trustee.  In  the  first 
class  of  cases  a  distinct  declaration 
of  the  trust  in  himself  without  more, 
appears  to  be  sufficient,  while  in  the 
latter  class  it  is  held  that  the  ques- 
tion, whether  or  not  a  trust  has  been 
created,  must  be  determined  upon 
principles  of  strict  law  governing 
the  perfect  transfer  of  a  legal  title 


(a)  The  declaration  must  go  far 
enough  to  vest  in  the  beneficiary 
"an  enforceable  equitable  interest 
in  the  property,   contingent   upon 

114 


nothing  except  the  terms  imposed 
by  the  declaration  of  trust."  Fisher 
V.  Hampton  Transportation  Co., 
136  Mich.  218,  98  N.  W.  1012. 


CHAP.  III.] 


VOLUNTARY    SETTLEMENTS. 


(§97. 


requires  to  be  proved  in  a  court  of  probate,  but  is  so  imper- 
fectly executed  that  it  cannot  be  proved  as  a  last  will  and  tes- 
tament, no  trust  will  be  created.'  (a) 

1  Ante,  §§  92-94;  Warriner  v.  Rogers,  L.  R.  16  Eq.  340;  Richardson 
V.  Richardson,  L.  R.  3  Eq.  686;  Morgan  v.  Malleson,  L.  R.  10  Eq.  47."). 
[Fisher  v.  Hampton  Transportation  Co.,  136  Mich.  218;  Bryan  v.  Bigelow, 
77  Conn.  604;  Pa}^on  v.  Almy,  17  R.  I.  60.5;  Dougherty  v.  Shillingshurg, 
175  Pa.  St.  56.] 


under  which  the  most  distinct  evi- 
dence of  intention  to  pass  an  in- 
terest may  not  be  conclusive." 

Voluntary  conveyances  or  declar- 
ations of  trust  are  subject  to  the 
general  rules  as  to  fraud  upon  credit- 
ors. If  they  are  made  with  actual 
intent  to  hinder,  delay  or  defraud 
either  prior  or  subsequent  creditors 
of  the  settlor,  they  are  voidable  by 
such  creditors.  Brundage  v.  Chen- 
eworth,  101  Iowa,  256;  Scott  v. 
Keane,  87  Md.  709,  See  Williams 
V.  Williams,  43  S.  W.  198  (Ky.). 
A  gift  of  this  sort  by  an  insolvent 
or  which  renders  the  donor  insolvent 
is  fraudulent  per  se  as  to  existing 
creditors.  Flaherty  v.  Stephenson, 
56  W.  Va.  192;  infra,  §  149. 

As  to  subsequent  creditors  the 
fraudulent  intent  must  be  shown. 
The  mere  fact  that  there  is  a  benefit 
for  the  settlor  is  not  conclusive 
of  fraudulent  intent,  Crawford  v. 
Langmaid,  171  Mass.  309;  infra, 
§  585,  even  when  the  trust  for  the 
settlor  is  secret.  Brown  v.  Bradford, 
103  Iowa,  378.  But  the  existence 
of  a  secret  trust  for  the  settlor 
usually  requires  explanation.  See 
Scott  V.  Keane,  87  Md.  709;  Coo- 
lidge  V.  Melvin,  42  N.  H.  510.  A 
power  of  revocation  in  the  settlor 


does  not  necessarily  render  the 
trust  fraudulent,  and  creditors  of  the 
settlor  cannot  compel  its  exercise 
for  their  benefit.  Jones  v.  CHfton 
101  U.  S.  225;  Brandies  v.  Cochrane, 
112  U.  S.  344,  353;  Hill  v.  Corn- 
wall's Assignee,  95  Ky.  512. 

Where  one  voluntarily  deeded 
all  her  property  in  trust  for  her  own 
use  for  life  with  power  of  appoint- 
ment by  will  and  on  failure  to  ap- 
point to  convey  to  her  heirs  and 
representatives,  it  has  been  held  that 
the  trust  was  not  in  fraud  of  sub- 
sequent creditors,  there  being  in 
fact  no  fraudulent  intent,  and  that 
the  settlor's  creditors  could  not 
reach  the  corpus  of  the  property, 
although  they  could  reach  the  in- 
come. Crawford  v.  Langmaid,  171 
Mass.  309.  The  courts  will  usually 
find  fraud  in  a  transaction,  the  effect 
of  which  would  be  to  put  the  settlor's 
property  out  of  reach  of  his  creditors 
while  reserving  to  himself  the  bene- 
ficial use. 

Even  in  a  case  like  Crawford  v. 
Langmaid,  where  there  was  no 
fraudulent  intent,  a  provision  by 
the  settlor  restraining  his  power  to 
aUenate  or  anticipate  income  is  void 
as  to  his  creditors.  Brown  v.  Macgill, 
87  Md.  161;  Jackson  v.  Von  Zedlitz, 


(a)  There  have  been  many  cases 
of  valid   trusts  which  in  practical 


effect  were  intended  to  be  hardly 
more  than  dispositions  of  the  propn 

115 


§98.] 


EXPRESS    TRUSTS,    ETC. 


[chap.  in. 


§  98.   But  if  the  trust  is  perfectly  created,  so  that  the  donor  or 
settlor  has  nothing  more  to  do,  and  the  person  seeking  to  enforce 


136  Mass.  342;  Pacific  Bank  v. 
Windram,  133  Mass.  175;  Schenck 
V.  Barnes,  156  N.  Y.  316;  Newton  v. 
Jay,  95  N.  Y.  S.  413,  107  App.  Div. 
457;  Egbert  v.  De  Solms,  218  Pa. 
St.  207.  See  injra,  §  386  a,  note.  A 
provision  by  the  settlor  that  his  right 
to  income  shall  cease  upon  his  be- 
coming   bankrupt    has    been    held 


erty  after  the  settlor's  death.  Thus 
cases  are  frequent  where  the  owner 
of  property  has,  without  considera- 
ation,  conveyed  it  to  another  to  hold 
as  trustee  for  the  benefit  and  en- 
joyment of  the  settlor  during  his 
life,  and  on  his  death  upon  further 
trust  for  other  beneficiaries  or  to 
pay  over  to  designated  persons. 
Nichols  V.  Emery,  109  Cal.  323; 
Lewis  V.  Cumutt,  130  Iowa,  423; 
Brown  v.  Mercantile  Trust  Co.,  87 
Md.  377;  Bromley  v.  Mitchell,  155 
Mass.  509;  Kelley  v.  Snow,  185 
Mass.  288;  N.  Y.  Life  Ins.  &  Tr.  Co. 
V.  Livingston,  133  N.  Y.  125;  Rynd 
V.  Baker,  193  Pa.  St.  486;  Wilson  v. 
Anderson,  186  Pa.  St.  531;  Kraft 
V.  Neuffer,  202  Pa.  St.  558;  Fry  v. 
Mercantile  Trust  Co.,  207  Pa.  St. 
640;  Brace  v.  Van  Eps,  12  S.  D.  191; 
13  S.  D.  452.  See  also  Durand  v. 
Higgins,  67  Kan.  110. 

The  essential  difference  between 
such  a  trust  instrument  and  a  will 
is  that  the  former  acts  at  once  to 
vest  the  interests  of  the  beneficia- 
ries, although  their  enjoyment  is 
postponed  until  after  the  death  of 
the  settlor,  but  a  will  does  not  take 
effect  until  the  death  of  the  testator 
and  until  that  time  vests  no  in- 
terests in    the    beneficiaries.     The 

116 


fraudulent  per  se  as  to  creditors, 
although  the  same  provision  made 
with  reference  to  the  beneficial  inter- 
est of  another  is  valid.  Mackintosh 
V.  Pogose,  [1895]  1  Ch.  505;  In  re 
Johnson,  [1904]  1  K.  B.  134;  Higgin- 
bottam  V.  Holme,  19  Ves.  88; 
Murphy  v.  Abraham,  15  Ir.  Ch.  371; 
infra,  §  555,  note. 


distinction  between  a  valid  trust 
of  this  nature  and  an  invalid  testa- 
mentary disposition  is  well  stated 
in  Nichols  v.  Emery,  109  Cal.  323, 
329.  It  is  there  said:  " The  essential 
characteristic  of  an  instrument  tes- 
tamentary in  its  nature  is,  that  it 
operates  only  upon  and  by  reason 
of  the  death  of  the  maker.  Up  to 
that  time  it  is  ambulatory.  By 
its  execution  the  maker  has  parted 
with  no  rights  and  divested  himself 
of  no  modicum  of  his  estate,  and 
per  contra  no  rights  have  accrued  to 
and  no  estate  has  vested  in  any 
other  person.  The  death  of  the 
maker  establishes  for  the  first  time 
the  character  of  the  instrument.  .  .  . 
Upon  the  other  hand,  to  the  creation 
of  a  valid  express  trust  it  is  essential 
that  some  estate  or  interest  should 
be  conveyed  to  the  trustee,  and, 
when  the  instrument  creating  the 
trust  is  other  than  a  will,  that  estate 

or  interest  must  pass  immediately 

But  it  is  important  to  note  the 
distinction  between  the  interest 
transferred  and  the  enjoyment 
of  that  interest.  The  enjoyment 
of  the  cestui  may  be  made  to 
commence  in  the  future  and 
to  depend  for  its  commence- 
ment upon   the  termination  of  an 


CHAP.   III.] 


VOLUNTARY    SETTLEMENTS. 


[§98. 


it  has  need  of  no  further  conveyances  from  the  settlor,  and  noth- 
ing is  required  of  the  court  but  to  give  effect  to  the  trust  as  an 


existing  life  or  lives  or  of  an  inter- 
mediate estate." 

A  reservation  by  the  settlor  of 
large  powers  of  control  over  the 
trust  property  and  even  of  a  power 
to  change  the  beneficiaries,  thus 
rendering  the  trust  nearly  as  ambu- 
latory as  a  will,  does  not  necessarily 
render  it  invalid.  Seaman  v.  Har- 
mon, 192  Mass.  5;  Kelley  v.  Snow, 
185  Mass.  288;  Stone  v.  Hackett, 
12  Gray,  227;  Kelly  v.  Parker, 
181  111.  49;  Brown  v.  Spohr,  84 
N.  Y.  S.  995,  87  App.  Div.  522; 
Schreyer  v.  Schreyer,  101  App.  Div. 
(N.  Y.)  456,  affirmed,  182  N.  Y. 
555.  But  provisions  which  enable 
the  settlor  to  revoke  the  trust  or 
to  change  the  beneficiaries  at  will 
are  looked  upon  with  considerable 
suspicion  by  the  courts,  and,  if 
convinced  that  the  only  object  of 
the  settlor  was  to  make  a  revocable 
disposition  to  take  effect  after  his 
death,  the  courts  will  not  sustain 
the  trust.  McEvoy  v.  Boston  Five 
Cents  Sav.  Bank,  201  Mass.  50; 
Brown  v.  Crafts,  98  Me.  40. 

In  Kelley  v.  Snow,  185  Mass. 
288,  the  trust  was  sustained  where 
a  married  woman  made  a  deed  of 
trust  of  all  her  personal  property 
described  in  a  schedule  attached, 
she  to  retain  possession  during  her 
life  and  to  collect  the  income  for 
her  own  benefit,  and  on  her  death 
the  trustee  to  take  possession  and 
divide  among  certain  named  bene- 
ficiaries. It  was  provided  in  the 
deed  that  the  settlor  should  have 
the  power  to  change  any  of  the 
dispositions  after  her  death  by  a 
written  notice  to  the  trustee.    But 


in  McEvoy  v.  Boston  Five  Cents 
Sav.  Bank,  201  Mass.  50,  87  N.  E. 
465,  the  same  court  refused  to  sus- 
tain an  attempted  testamentary 
disposition  by  way  of  trust  where 
the  grantor  retained  all  the  rights 
of  absolute  beneficial  owner  and 
the  absolute  right  to  revoke  the 
trust,  the  assignment  in  trust  pro- 
viding that  the  trustee  "shall  pay 
to  me  such  moneys  as  I  may  demand 
of  him  at  any  time  during  my  life, 
until  I  have  used  the  amount  con- 
veyed to  him  by  this  deed,"  and 
the  revocable  testamentary  dispo- 
sition applying  only  to  so  much  of 
the  property  as  should  be  left  at  the 
assignor's  death. 

In  Kelley  v.  Parker,  181  111.  49, 
it  was  held  that  a  valid  trust  was 
created  when  the  owner  of  land 
conveyed  it  by  voluntary  deed  to 
two  persons  to  hold  as  trustees  and 
to  allow  the  grantor  to  use,  occupy, 
manage,  control,  improve  and  lease, 
and  to  have  all  the  rents  and  prof- 
its in  the  same  manner  as  if  he 
were  the  owner,  and  after  his  death 
to  distribute  among  certain  named 
persons.  Power  was  reserved  to 
the  grantor  to  let,  demise,  mortgage, 
sell  and  convey,  and  to  revoke  the 
trust  by  writing  under  seal;  and  it 
was  provided  that  the  trust  deed 
should  not  be  placed  on  record  until 
after  the  grantor's  death  and  until 
then  should  be  held  by  an  agent  of 
the  trustees.  In  Rynd  v.  Baker,  193 
Pa.  St.  486,  a  valid  irrevocable  trust 
was  created  by  a  voluntary  deed  of 
conveyance  by  a  settlor  of  all  his 
property  in  trust  to  manage  and 
invest,  to  pay  him  and  his  family 

117 


98.1 


EXPRESS    TRUSTS,    ETC. 


[chap.    III. 


executed  trust,  it  will  be  carried  into  effect  at  the  suit  of  a  party 
interested,  although  it  was  without  consideration,  and  the  pos- 


out  of  the  income  sums  sufficient 
for  their  Hberal  and  comfortable 
support,  to  accumulate  surplus 
income,  and  on  the  settlor's  death 
to  convey  the  whole  estate  as  he 
should  direct  by  will  or  in  default 
of  appointment  to  his  wife  and 
children.  See  also  Wilson  v.  Ander- 
son, 186  Pa.  St.  531;  Kraft  v. 
Neuffer,  202  Pa.  St.  558;  Fry  v. 
Mercantile  Trust  Co.,  207  Pa. 
St.  640.  In  Brown  v.  Spohr,  87  App. 
Div.  522,  84  N.  Y.  S.  995,  a  partner 
in  a  mercantile  firm  had  a  credit 
of  $20,000  in  his  favor  on  the  firm 
books  transferred  to  two  trustees 
to  hold  in  trust.  They  were  to 
demand  payment  at  his  death  or 
sooner  at  their  discretion.  Interest 
on  the  loan  was  to  be  paid  to  settlor's 
niece  for  life  and  after  her  death 
for  certain  other  purposes.  The 
settlor  was  to  have  fuU  power  to 
revoke  the  trust  or  change  its  terms, 
and  did  later  modify  it,  making  the 
income  payable  to  himself  for  life. 
This  was  held  to  be  a  vaUd  trust. 
See  also  N.  Y.  Life  Ins.  &  Trust  Co., 
V.  Livingston,  133  N.  Y.  125.  In 
Brace  v.  Van  Eps,  12  S.  D.  191 
(reaffirmed  in  13  S.  D.  452),  a  valid 
trust  was  created  by  a  deed  of  con- 
veyance to  trustees  to  hold,  manage, 
control,  transfer,  sell,  lease  or  other- 
wise dispose  of  as  may  be  for  the 
best  interests  of  the  grantor's  family, 
and,  after  the  grantor's  death,  to 
distribute  among  those  entitled  to 
share  in  his  estate  under  the  law 
for  distribution  of  estates  of  intes- 
tates. See  also  Lewis  v.  Cumutt, 
130  Iowa,  423.  For  a  decision  hold- 
ing void  a  deed  of  transfer  "having 

118 


the  semblance  of  a  gift  but  the  sub- 
stance of  a  will,"  see  Brown  v. 
Crafts,  98  Me.  40. 

Trusts  of  the  same  general  nature 
have  been  held  to  be  valid  and  bind- 
ing on  the  settlor,  not  only  during 
his  life  but  after  his  death,  when  he 
has  made  himself  the  trustee.  Thus 
in  Robb  v.  Washington  &  Jefferson 
College,  185  N.  Y.  485,  78  N.  E. 
359,  a  settlor  executed  a  voluntary 
declaration  of  trust,  setting  forth 
that  he  had  set  aside  certain  enu- 
merated securities  to  the  value  of 
about  $129,000,  to  hold  the  same, 
upon  trust  for  certain  uses,  viz., 
to  pay  to  Washington  &  Jefferson 
College  during  his  life  $1800  annually 
out  of  the  net  income  for  the  sup- 
port of  a  certain  professorship;  to 
apply  the  balance  of  the  income  to 
his  own  use.  He  appointed  the 
college  to  be  trustee  from  and  after 
his  decease,  to  pay  (to  named  per- 
sons) certain  sums  aggregating 
$32,000,  and  certain  annuities,  the 
balance  of  the  net  income,  and  after 
the  death  of  the  annuitants  all  the 
net  income  to  be  devoted  to  the  pro- 
fessorship. The  settlor  reserved  to 
himself  the  right  to  modify  provi- 
sions as  to  legacies  and  annuities  pro- 
vided he  did  not  increase  their 
aggregate.  It  was  held  that  both 
the  trust  before  his  death  and  the 
trust  after  his  death  were  valid. 
"Doubtless  the  second  trust  created 
by  the  declaration  was  not  to  take 
effect  in  possession  or  enjoyment 
till  the  death  of  the  founder.  But 
this  was  by  reason  of  the  terms  of 
the  instrument  itself,  not  because 
the  instrument  was    testamentary. 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  98. 

session  of  the  property  was  not  changed.'    And  this  will  be  true 
although  the  person  who  is  intended  to  be  benefited  has  no 

'  Stone  V.  Hackett,  12  Gray,  227;  Ellison  v.  Ellison,  6  Ves.  662;  Pul- 
vertoft  V.  Pulvertoft,  18  Ves.  99;  Sloan  v.  Cadogan,  Sugd.  Ven.  &  Pur. 
App.  26;  Edwards  v.  Jones,  1  M.  &  Cr.  226;  Wheatley  i;.  Purr,  1  Keen, 
551;  Garrard  v.  Lauderdale,  3  Sim.  1;  Collinson  v.  Patrick,  2  Keen,  123; 
Dillon  V.  Coppin,  4  M.  &  Cr.  647;  Meek  v.  Kettlewell,  1  Hare,  464;  Fletcher 
V.  Fletcher,  4  Hare,  74;  Price  v.  Price,  4  Beav.  598;  Bridge  v.  Bridge,  16 
Beav.  315;  Beech  v.  Keep,  18  Beav.  285;  Donaldson  v.  Donaldson,  1  Kay, 
711;  Scales  v.  Maude,  6  De  G.,  M.  &  G.  43;  Airey  v.  Hall,  3  Sm.  &  Gif. 
315;  Wright  V.  Miller,  4  Seld.  9;  Andrews  v.  Hobson,  23  Ala.  219;  Lech- 
mere  V.  Cariisle,  3  P.  Wms.  222;  Bunn  v.  Winthrop,  1  Johns.  Ch.  329; 
Mintum  v.  Seymour,  4  id.  498;  Dennison  v.  Goehring,  7  Barr,  175;  Tolar 
V.  Tolar,  1  Dev.  Eq.  456;  Dawson  v.  Dawson,  id.  93,  396;  Hardin  v.  Baird, 
6  Litt.  340;  Hayes  v.  Kershaw,  1  Sand.  Ch.  261;  Fogg  v.  Middleton,  Riley, 
Ch.  193;  Greenfield's  Estate,  2  Harr.  489;  Kirkpatrick  v.  McDonald,  1 
Jones,  387;  Graham  v.  Lambert,  5  Humph.  595;  Henson  v.  Kinard,  3  Strob. 
Eq.  371;  Dupre  v.  Thompson,  4  Barb.  280;  Cox  v.  Sprigg,  6  Md.  274; 
Lane  v.  Ewing,  31  Mo.  75;  Ownes  v.  Ownes,  23  N.  J.  Eq.  60;  Baker  v.  Evans, 
1  Wins.  Eq.  (N.  C),  109;  Massey  v.  Huntington,  118  111.  80;  Richardson 
V.  Richardson,  L.  R.  3  Eq.  686;  Toker  v.  Toker,  3  De  G.,  J.  &  S.  487;  Howard 
V.  Savings  Bank,  40  Vt.  597;  Tanner  v.  Skinner,  11  Bush  (Ky.),  120.  Except 
against  creditors  and  bona  fide  purchasers  without  notice.  Padfield  v. 
Padfield,  68  111.  25;  Borum  v.  King,  Ala.  Sel.  Cas.  534,  is  contra.  [See  1 
Ames'  Cases  on  Trusts  (2d  ed.),  125  note.] 

In  Stone  v.  Hackett,  12  Gray,  227,  the  settlor  had  purchased  stocks  in 
various  corporations  in  the  name  of  H.  P.  K.,  and  took  from  H.  P.  K.  a 
declaration  that  she  held  the  stocks  upon  certain  trusts  therein  particu- 
larly specified.  Afterwards  the  settlor  caused  H.  P.  K.  to  indorse  and 
sign  upon  the  backs  of  the  certificates  a  transfer  to  the  plaintiflF  and  a 
power  of  attorney  to  the  plaintiff  to  complete  the  transfer,  and  took  from 
her  a  declaration  of  trust,  stating  the  purposes  for  which  she  held  the  stock. 
The  settlor  died,  and  a  question  arose  as  to  the  title  to  the  stock.  Chief- 
Justice  Bigelow  said:  "The  key  to  the  solution  of  the  question  raised  in 

Under    the    declaration    the    rights  been  trusts  of  savings  banks  deposits, 

of  the  beneficiaries  accrued  at  the  where  a  depositor  has  had  his  ac- 

time  of  its  execution  and  delivery,  count  placed  in  his  name  as  trustee 

and  except  as  the  instrument  itself  for  another,  or  where  he  has  deposi- 

contained    a    power    of    revocation  ted  in  the  name  of  another  retaining 

either  in   whole  or  in   part,    those  control  of  the  bank  book.      Recent 

rights  could  not  be  affected  or  modi-  cases  concerning  the  creation  of  a 

fied  by  the  subsequent  acts  of  the  trust  in  such  cases  have  been  dealt 

founder."  with   in  a  separate   note.     Supra, 

Frequent  cases  of  this  kind  have  §  82. 

119 


§  98.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    UI. 

knowledge  of  the  act  at  the  time  it  is  done,  provided  he  accepts 
and  ratifies  it  when  he  is  notified.^    But  if  there  is  any  fraud, 

this  case  is  to  be  found  in  the  equitable  principle  now  well  established  and 
uniformly  acted  on  by  courts  of  chancery,  that  a  voluntary  gift  or  con- 
veyance of  property  in  trust,  when  fully  completed  and  executed,  will  be 
regarded  as  vaUd,  and  its  provisions  enforced  and  carried  into  effect  against 
all  persons  except  creditors  and  bona  fide  purchasers  without  notice.  It 
is  certainly  true  that  a  court  of  equity  will  lend  no  assistance  towards  per- 
fecting a  voluntary  contract  or  agreement  for  the  creation  of  a  trust,  nor 
regard  it  as  binding  so  long  as  it  remains  executory.  But  it  is  equally  true 
that  if  such  an  agreement  or  contract  be  executed  by  a  conveyance  of 
property  in  trust,  so  that  nothing  remains  to  be  done  by  the  grantor  or 
donor  to  complete  the  transfer  of  the  title,  the  relation  of  trustee  and  cestui 
que  trust  is  deemed  to  be  estabUshed,  and  the  equitable  rights  and  interests 
arising  out  of  the  conveyance,  though  made  without  consideration,  will  be 
enforced  in  chancery.  The  leading  case  in  which  the  principle  is  declared 
and  acted  upon  is  Ellison  v.  ElUson,  6  Ves.  656,  in  which  Lord  Eldon  decreed 
the  enforcement  of  a  trust  which  in  its  creation  was  wholly  volun- 
tary and  without  consideration.  This  has  been  followed  by  many  other 
cases  in  which  the  same  principle  was  recognized.  Pulvei'toft  v.  Pulvertoft, 
18  Ves.  84;  Ex  parte  Pye,  id.  140;  Sloan  v.  Cadogan,  Sugd.  Ven.  &  Pur. 
(11th  ed.)  1119;  Fortescue  v.  Bamett,  3  My.  &  K.  36;  Wheatley  t;.  Purr,  1 
Keen,  551;  Blakely  v.  Brady,  2  Dm.  &  Wal.  311;  Browne  v.  Cavendish, 
1  Jon.  &  La.  637;  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  176.  The  last 
named  case  contains  a  full  discussion  of  all  the  authorities,  and  a  clear  and 
accurate  statement  of  the  law  upon  the  subject. 

"The  application  of  the  principle  established  by  these  authorities  is 
entirely  decisive  of  the  rights  and  duties  of  the  parties  to  this  suit.  The 
conveyance  or  transfer  of  the  shares  to  the  plaintiff  in  her  capacity  of 
trustee  was  full  and  complete,  and  vested  in  her  the  legal  title  to  the  prop- 
erty. No  further  act  was  to  be  done  by  the  original  owner  of  the  shares 
to  consummate  the  plaintiff's  title,  as  between  the  parties  the  delivery  of 
the  certificates  of  stock,  with  the  assignments  of  some  of  them  and  the 
power  of  attorney  to  transfer  the  others,  was  equivalent  to  a  complete  ex- 
ecuted transfer  of  the  shares.  Nor  is  it  at  all  material  to  the  validity  of 
the  plaintiff's  title  that  transfers  of  the  shares  had  not  been  recorded  in 
the  books  of  the  different  corporations  and  new  certificates  of  stock  taken 


1  Neilson  v.  Blight,  1  Johns.  Cas.  205;  Moses  v.  Murgatroyd,  1  Johns. 
Ch.  119;  Weston  v.  Barker,  12  Johns.  276;  Cumberland  v.  Codrington,  3 
Johns.  Ch.  261.  And  see  Shepherd  v.  McEvers,  4  Johns.  Ch.  136;  Hosford 
V.  Merwin,  5  Barb.  51;  Wetzel  v.  Chaplin,  3  Bradf.  396;  Brabrook  v.  Boston 
Five  Cents  Savings  Bank,  104'Ma8s.  231.  [Libby  v.  Frost,  98  Me.  288;  City 
of  Marquette  v.  Wilkinson,  119  Mich.  413;  Martin  v.  Funk,  75  N.  Y.  134.] 

120 


CHAP.  III. J        VOLUNTARY  SETTLEMENTS.  [§  99. 

accident,  or  mistake  in  the  transaction,  courts  will  not  carry  a 
voluntary  trust  into  execution.' 

§  99.  The  trust  must  be  for  a  lawful  purpose  and  perfectly 
created.  If  a  will  creates  several  trusts,  some  of  which  are  legal 
and  others  not,  the  lawful  ones  will  be  upheld  if  they  can  be 
separated  from  the  others.^  (a)     Whether  the  trust  is  perfectly 

out  by  her.  That  was  not  necessary  to  the  conveyance  of  the  legal  title 
as  between  the  donor  and  the  plaintiff.  This  is  well  settled  by  the  au- 
thorities in  this  State.  Quinn  v.  Marblehead  Social  Ins.  Ck).,  10  Mass. 
476;  EUis  v.  Essex  Merrimack  Bridge,  2  Pick.  248;  Sargent  v.  Frankhn 
Ins.  Co.,  8  Pick.  96;  Eames  v.  Wheeler,  19  Pick.  444.  Such,  too,  is  the 
plain  import  of  the  statute.  .  .  .  Nothing  therefore  was  left  in  fieri. 
The  transaction  was  a  completely  executed  transfer  of  property,  and  fully 
created  a  trust  which,  according  to  the  principles  already  stated,  a  court 
of  equity  is  bound  to  recognize  and  enforce."  Penfield  v.  Public  Adm'r, 
2  E.  D.  Smith,  .505;  Millspaugh  v.  Putnam,  16  Abb.  380;  Hunter  v.  Hunter, 
19  Barb.  631;  Grangiar  v.  Arden,  10  Johns.  293;  Benlow  v.  Townsend, 
1  My.  &  K.  506;  Mendon  v.  Merrill,  2  Edw.  Ch.  333;  Howard  v.  Windham 
County  Savings  Bank,  40  Vt.  597;  Sherwood  v.  Andrews,  2  Allen,  79;  War- 
riner  v.  Rogers,  L.  R.  16  Eq.  341 ;  Blasdel  v.  Locke,  62  N.  H.  238. 

»  Lister  v.  Hodgson,  L.  R.  4  Eq.  30. 

2  Kennedy  v.  Hoy,  105  N.  Y.  134.  [NeUis  v.  Rickard,  133  Cal.  617; 
Sacramento  Bank  v.  Montgomery,  146  Cal.  745;  Estate  of  Pichoir,  139 
Cal.  682;  McCurdy  v.  Otto,  140  Cal.  48;  White  v.  Allen,  76  Conn.  185; 
Landram  v.  Jordan,  25  App.  D.  C.  291,  302;  Keycs  v.  Northern  Tr.  Co., 
227  111.  354;  Matter  of  Mount,  185  N.  Y.  162;  Smith  v.  Chesebrough,  176 
N.  Y.  317;  Kahsh  v.  Kahsh,  166  N.  Y.  368;  Hascall  v.  King,  162  N.  Y.  134; 
Culrossr.  Gibbons,  1.30  N.  Y.  447;  Endress  i-.  Wllley,  106  N.  Y.  S.  726; 
Matter  of  Hoyt,  101  N.  Y.  S.  557,  116  App.  Div.  217;  hi  re  Wilcox,  109 
N.  Y.  S.  564;  Denis's  Estate,  201  Pa.  St.  616.] 

(a)  But  if   the   lawful   purposes  185  N.  Y.  23;  Reid  v.  Voorhees,  216 

cannot  be  separated  from  the  un-  111.  236,  247.     The  decisions  cited 

lawful    purposes    the    whole    tru.st  above    have    considered    the    valid 

must  fail.    Estate  of  Fair,  136  Cal.  trusts  inseparable  from  the  invalid 

79  (reaffirming  132  Cal.  532);  Car-  ones  if  the  separation  would  defeat 

penter  f.  Cook,  132  Cal.  621;  Estate  the  general  scheme  of  the  testator 

of  Dixon,   143  Cal.  511;  Hofsas  v.  or  if  the  valid  trust  was  intended  to 

Cummings,    141    Cal.   525;   Matter  be  merely  incidental  to  the  invaUd 

of  Will  of  Butterfield,    133  N.  Y.  one,  as  for  example,  a  valid  trust 

473;  Dresser  v.  Travis,  79  N.  Y.  S.  for  remainder-men  after  an  invalid 

924;  Central  Trust  Co.  v.  Egleston,  trust  for  life  tenants,  the  creation 

121 


§  99.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

created  or  not,  is  a  question  of  fact  in  each  case;  and  the  court, 
in  determining  the  fact,  will  give  effect  to  the  situation  and  rela- 
tion of  the  parties,  the  nature  and  situation  of  the  property,  and 
the  purposes  or  objects  which  the  settlor  had  in  view  in  making 
the  disposition/     A  vast  number  of  cases  have  been  decided  in- 

'  See  Brabrook  v.  Savings  Bank,  104  Mass.  228,  where  deposits  in  sav- 
ings banks  are  fully  discussed.  Jones  v.  Lock,  L.  R.  1  Ch.  25.  In  this 
case  a  father  put  a  check  for  £900  into  the  hands  of  his  child,  nine  months 
old,  with  the  strongest  expression  of  an  intent  to  give  the  check  to  the 
child.  He  afterwards  took  the  check  and  locked  it  up,  sajdng  he  should 
keep  it  for  the  child,  and  died  the  same  day.  A  bill  was  brought  in  be- 
half of  the  child  against  his  father's  representatives  to  enforce  his  interest 
in  the  check  as  a  trust.  Lord  Cran worth  said:  "No  doubt  a  gift  may  be 
made  by  any  person  sui  juris  and  compos  mentis,  by  conveyance  of  real 
estate  or  by  delivery  of  chattels;  and  there  is  no  doubt  also  that  by  some 
decisions,  unfortunate  I  must  think  them,  a  parol  declaration  of  a  trust 
of  personalty  may  be  perfectly  vaUd  even  when  voluntary.  If  I  give  any 
chattel,  that  of  coiu^e  passes  by  dehvery,  and  if  I  say  expressly,  or  im- 
phedly,  that  I  constitute  myself  a  trustee  of  personalty,  that  is  a  trust  exe- 
cuted, and  capable  of  being  enforced  without  consideration.  I  do  not 
think  it  necessary  to  go  into  any  of  the  authorities  cited  before  me.  They 
all  turn  upon  the  question  whether  what  has  been  said  was  a  declaration,  of  truest 
or  an  imperfect  gift.  In  the  latter  the  parties  would  receive  no  aid  from  a 
court  of  equity,  if  they  claimed  as  volimteers;  but  if  there  has  been  a  declar- 
ation of  trust,  then  it  will  be  enforced  whether  there  has  been  a  consideration 
or  not.  Therefore  the  question  in  each  case  is  one  of  fact,  has  there  been  a  gift 
or  not,  or  has  there  been  a  declaration  of  trust  or  not?  This  case  turns 
on  the  very  short  question  whether  the  father  intended  to  make  a  declar- 
ation that  he  held  the  property  in  trust  for  the  child,  and  I  cannot  come 
to  any  other  conclusion  than  that  he  did  not."  His  Lordship  then  com- 
ments upon  the  evidence,  and  says  "that  it  was  all  very  natural,  but  that 
the  father  would  have  been  very  much  surprised  if  he  had  been  told  that  he 
had  parted  with  the  £900,  and  could  no  longer  dispose  of  it;  and  that  the 
child,  by  his  next  friend,  could  have  brought  an  action  of  trover  for  the 

of    the    latter    being    the    primary  but  when  it  is  possible  to  cut  out  the 

purpose  of  the  testator.  invalid   provisions,   so  as   to  leave 

In  Kalish  v.  Kahsh,  166  N.  Y.  368,  intact  the  parts  that  are  valid,  and 

it  is  said  that  the  rule  is  firmly  es-  to  preserve  the  general  plan  of  the 

tabhshed  in  New  York  "that  when  testator,  such  a  construction  wiU  be 

the  several  parts  of  a  will  are  so  in-  adopted  as  wiU  prevent  intestacy, 

termingled   or  interdependent   that  either  partial  or  total  as  the  case 

the  bad  cannot  be  separated  from  the  may  be," 
good,  the  will  must  fail  altogether; 
122 


CHAP.  III.]  VOLUNTARY   SETTLEMENTS.  [§  99. 

volving  the  last  three  propositions.  There  is  much  seeming 
conflict  in  the  decisions,  and  it  would  be  an  endless,  perhaps 
useless,  task  to  attempt  to  reconcile  them.  The  proposition  laid 
down  by  Lord  Cranworth,  that  it  is  a  question  of  fact  in  each 
case  whether  a  perfect  trust  is  created  or  not,  goes  far  to  recon- 
cile the  differences.  Some  judges  give  greater  prominence  to 
one  element  of  fact  in  the  case  than  other  judges,  and  thus  dif- 
ferent judges  might  decide  the  same  question  upon  the  facts  in 
a  different  manner;  but  so  long  as  it  is  a  question  of  fact  in  each 
case,  the  rule  of  law  is  the  same,  however  the  fact  may  be  found. 
When  a  deed  fully  declaring  the  trust  is  executed  and  delivered, 
and  nothing  further  remains  to  be  done  by  the  grantor,  the  trust 
is  created.^  trailing  to  name  the  beneficiary  will  not  be  fatal, 
if  the  title  is  properly  conveyed  and  the  trustee  admits  that  he 
holds  for  the  plaintiff.^  In  New  York,  however,  it  is  held  that 
the  absence  of  a  defined  beneficiary  capable  of  enforcing  the 
trust  is  in  general  fatal,  and  that  giving  power  to  the  trustee 
to  select  the  beneficiary  is  not  sufl^cient,  unless  the  persons 
among  whom  the  choice  is  to  be  made  are  so  defined  and  limited 
that  a  court  of  equity  could  in  default  of  selection  by  the  trus- 
tee enforce  the  trust  by  a  distribution  among  all  the  beneficia- 
ries.^ (a)    In  this  case  the  trust  was  to  have  prayers  offered  in  a 

check."  See  Scales  v.  Maude,  6  De  G.,  M.  &  G.  51;  Hackney  v.  Vrooman, 
62  Barb.  650;  Brabrook  v.  Boston  Five  Cents  Savings  Bank,  104  Mass. 
228;  Richards  v.  Delbridge,  L.  R.  18  Eq.  11;  Martin  v.  Funk,  75  N.  Y.  134; 
Gerrish  v.  New  Bedford  Inst,  for  Savings,  128  Mass.  159;  Taylor  v.  Henry, 
48  Md.  550;  Stone  v.  Bishop,  4  CUff.  593;  Ray  v.  Simmons,  11  R.  I.  266; 
O'Brien,  Pet'r,  id.  R.  I.  419;  Blaisdell  v.  Locke,  52  N.  H.  238.  The  decis- 
ions are  not  uniform  as  to  the  effect  of  a  deposit  in  Savings  Bank  and 
entry  in  the  books  for  the  benefit  of,  or  in  trust  for  a  child  or  other  bene- 
ficiary; in  some  cases  it  is  held  sufficient  declaration  of  a  trust,  and  in  others 
something  further  is  required,  as  notice,  or  deUvery  of  the  book.  [See  §  82, 
note  a,  p.  84  et  seq.] 

1  Massey  i^.  Huntington,  118  111.  80. 

»  Sleeper  v.   Iselin,  62  Iowa,  585;  Boardman  v.  Willard,  73  Iowa,  20. 

'  Holland  v.  Alcock,  108  N.  Y.  312.     [Tilden  i-.  Green,  130  N.  Y.  29.] 

(a)    But  this  rule  so   far  as  it     poses  has  been  changed  by  statute. 
applies  to  trusts  for  charitable  pur-     See  infra,  §  729,  note. 

123 


§   100.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

Roman  church  for  the  repose  of  the  souls  of  the  grantor,  his 
family,  and  all  others  in  purgatory.  A  deed  saying,  "The  fol- 
lowing notes  I  leave  in  trust  with  E.  C.  to  be  divided  among  A., 
B.,  and  C.  at  my  death,"  was  held  to  create  a  perfect  present 
trust.  ^  A  conveyance  may  be  made  upon  trusts  to  be  subse- 
quently declared,  and  when  the  subsequent  declaration  occurs, 
the  trust  is  treated  in  the  same  way  as  if  declared  at  the  time  of 
the  deed.^  The  consent  or  even  knowledge  of  the  cestui  is  not  a 
necessary  element  in  the  creation  of  a  valid  trust.  A  transfer 
of  stock,  for  instance,  in  proper  form  vests  the  title  in  the  trans- 
feree subject  to  his  repudiation  when  informed  of  the  trans- 
action.^ 

§  100.  If  the  donor  or  settlor  propose  to  make  a  stranger 
the  trustee  of  his  property,  and  the  property  is  a  legal  estate 
capable  of  legal  transfer  and  delivery,  the  trust  is  not  per- 
fectly created,  unless  the  legal  interest  is  actually  transferred 
to  or  vested  in  the  trustee.  It  is  not  enough  that  the  settlor 
executed  a  paper  purporting  to  pass  it,  if  in  fact  the  paper  does 
not  have  that  effect.  The  intention  of  the  settlor  to  divest 
himself  of  the  legal  title  must  be  consummated  and  executed, 
or  the  court  will  not  enforce  the  trust,  (a)  As,  for  instance,  if  a 
settlor  execute  a  deed  in  trust  of  scrip,  stock,  or  shares  in  cor- 
porations, which  scrip,  stock,  or  shares  can  be  transferred  only 
by  assignment  upon  the  backs  of  the  certificates,  and  upon  the 
company's  books,  the  deed,  if  voluntary,  will  not  create  a  trust 
which  the  court  will  execute,  unless  the  stocks  are  actually 
transferred  in  fact.^    And  so  of  mortgages,  mortgage  debts,  and 

>  Egerton  v.  Carr,  94  N.  C.  648. 

2  Ireland  v.  Geraghty,  11  Biss.  (U.  S.)  465. 

3  Standing  v.  Bowring,  31  Ch.  D.  282. 

*  Garrard  v.  Lauderdale,  2  R.  &  M.  451;  3  Sim.  1;  Meek  v.  Kettlewell, 
1  Hare,  464;  Dillon  v.  Coppin,  4  M.  &  Cr.  647;  Coningham  v.  Plunkett, 

(a)  Loring  v.  Hildreth,  170  Mass.  son,   [1903]  2  Ch.  494  (as  to  effect 

328  (Compare  Tarbox  v.  Grant,  56  of  disclaimer  by  grantee);  Wells  v. 

N.    J.    Eq.  199);  Peck  v.  Scofield,  German  Ins.  Co.,  128  Iowa,  649. 
186  Mass.  108.    See  Mallott  v.  Wil- 

l'>4 


CHAP.    III.]  VOLUNTARY    SETTLEMENTS.  [§   101. 

other  securities.  If  anything  remains  for  the  donor  to  do  to 
vest  the  legal  title  in  the  donee,  the  court  cannot  execute  the 
trust,  if  it  is  voluntary.  Ix)rd  Eldon  stated  the  principle  thus: 
"  I  take  the  distinction  to  be,  that  if  you  want  the  assistance  of 
the  court  to  constitute  a  cestui  que  trust,  and  the  instrument  is 
voluntary,  you  shall  not  have  the  assistance  for  the  purpose  of 
constituting  a  cestui  que  trust,  as  upon  a  covenant  to  transfer 
stock,  &c. ;  but  if  the  party  has  completely  transferred  stock, 
&c.,  though  it  is  voluntary,  yet  the  legal  conveyance  being  actu- 
ally made,  the  equitable  interest  will  be  enforced  by  this  court.^ 

§  101.  But  if  the  subject  of  the  trust  is  a  legal  interest  that 
cannot  be  transferred  or  assigned  at  law,  as  a  bond  or  any  other 
chose  in  action,  what  then  is  the  rule?  On  the  one  hand  it  has 
been  argued  that  in  equity  the  universal  rule  is,  that  a  court 
will  not  enforce  a  voluntary  agreement  in  favor  of  a  volunteer, 
and  as  by  the  supposition  the  legal  interest  remains  in  the  set- 
tlor (who,  therefore,  at  law  retains  the  full  control  and  benefit 
of  it),  a  court  of  equity  will  not,  in  the  absence  of  a  valuable  or 
good  consideration,  deprive  him  of  that  interest,  with  which  he 
has  not  actually  parted.  And  this  reasoning  has  been  sustained 
by  numerous  cases.^    On  the  other  hand,  as  the  settlor  cannot 

2  Y.  &  Col.  Ch.  245;  Searle  v.  Law,  15  Sim.  95;  Price  v.  Price,  14  Beav. 
859;  Bridge  v.  Bridge,  16  Beav.  315;  Beech  v.  Keep,  18  Beav.  285;  Tot- 
ham  V.  Vernon,  29  Beav.  604;  Dillon  v.  Bone,  3  Gif.  238;  Milroy  v.  Lord, 
8  Jur.  (n.  s.)  806;  4  De  G.,  F.  &  J.  264;  Pamell  v.  Kingston,  3  Sm.  &  Gif. 
337;  KiddiU  v.  Famell,  ib.  428;  Weale  v.  Ollive,  17  Beav.  252;  Denning  v. 
Ware,  22  Beav.  184;  Roberta  v.  Roberts,  11  Jur.  (n.  s.)  992;  Forest  v. 
Forest,  34  L.  J.  Ch.  428;  Peckham  v.  Taylor.  31  Beav.  250;  Lonsdale's 
Estate,  29  Penn.  St.  407;  Cressman's  App.  42  id.  147;  Jones  v.  Obinchain, 
10  Grat.  259;  Henderson  v.  Henderson,  21  Mo.  379;  Lane  v.  Ewing,  31 
Mo.  75;  Gilchrist  v.  Stevenson,  9  Barb.  9:  Doty  v.  Wilson,  5  Lans.  7.  [See 
Curtis  V.  Crossley,  59  N.  J.  Eq.  358,  where  a  trust  was  created  by  a  deed  of 
assignment  of  shares  of  stock  and  delivery  of  the  certificates,  but  without 
indorsement  by  the  settlor.] 

'  Ellison  V.  ElUson,  6  Ves.  662;  Antrobus  v.  Smith,  12  Ves.  39;  Col- 
man  V.  Sarel,  1  Ves.  Jr.  50;  3  Bro.  Ch.  12;  Dening  v.  Ware,  22  Beav.  184; 
Airey  v.  Hall,  3  Sm.  &  Gif.  315;  Kiddill  v.  Famell,  id.  428;  Pulvertoft  t-. 
Pulvertoft,  18  Ves.  89;  Brabrook  v.  Savings  Bank,  104  Mass.  228. 

2  Edwards  v.  Jones,  1  My.  &  Cr.  226;  Ward  v.  Audland,  8  Sim.  571;  C. 

J  25 


§   101.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

divest  himself  of  the  legal  interest,  to  say  that  he  shall  not  con- 
stitute another  as  trustee  without  passing  the  legal  interest, 
would  be  to  debar  him  from  the  creation  of  a  trust  at  all  in  the 
hands  of  another,  and  that  the  rule,  therefore,  should  be,  that 
if  the  settlor  make  all  the  assignment  of  the  property  in  his 
power,  and  perfect  the  transaction  as  far  as  the  law  permits,  the 
court  should  recognize  the  act  and  support  the  validity  of  the 
trust.  And  this  reasoning  has  also  been  supported  by  many 
decided  cases.^  In  a  leading  case,  Lord  Justice  K.  Bruce  made 
a  thorough  examination  of  all  the  authorities,  and  established 
this  proposition:  "It  is  upon  legal  and  equitable  principles,  we 
apprehend,  clear  that  a  person  sui  juris,  acting  freely  and  fairly, 
and  with  sufficient  knowledge,  ought  to  have,  and  has  it  in  his 
power  to  make  in  a  binding  and  effectual  manner  a  voluntary 
gift  of  any  part  of  his  property,  whether  capable  or  incapable  of 
manual  delivery,  whether  in  possession  or  reversionary,  or  how- 
soever circumstanced."  "^  Mr.  Lewin  says,  "that  it  is  conceived 
that  this  principle  will,  for  the  future,  prevail,"  ^  and  it  has 
been  followed  in  the  later  cases.^  But  if  part  of  the  property 
be  capable  of  delivery  and  transfer,  and  part  of  it  incapable  of 
delivery,  and  that  which  might  have  been  legally  assigned  and 
delivered  is  not  so  assigned  and  delivered,  no  trust  is  created.^ 

P.  Coop.  Cas.  (1846),  146;  8  Beav.  201;  Meek  v.  Kettlewell,  1  Hare,  464; 
Scales  V.  Maude,  6  De  G.,  M.  &  G.  43;  Sewell  v.  Moxsy,  2  Sim.  (n.  s.) 
189;  Bridge  v.  Bridge,  16  Beav.  315;  Beech  v.  Keep,  18  Beav.  285. 

1  Fortescue  v.  Barnett,  3  My.  &  K.  36;  Roberts  v.  Lloyd,  2  Beav.  376 
Blakely  v.  Brady,  2  Dru.  &  Wal.  311;  .\irey  v.  HaU,  3  Sm.  &  Gif.  315 
PameU  v.  Hingston,  id.  337;  Pearson  v.  Amicable  OflBce,  27  Beav.  229 
Sloan  V.  Cadogan,  Sugd.  Vend.  &  Pur.  App. 

2  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  187. 
^  Lewin  on  Trusts,  58. 

*  Wilcocks  V.  Hannyngton,  5  Ir.  Ch.  45;  Voyle  v.  Hughes,  2  Sm.  &  Gif. 
18;  Gilbert  v.  Overton,  33  L.  J.  Ch.  683;  Way's  Settlement,  10  Jur.  (n.  s.) 
1166;  34  L.  J.  Ch.  49;  Lambe  v.  Orton,  1  Dr.  &  Sm.  125;  Donaldson  v. 
Donaldson,  Kay,  711;  Appeal  of  Elliott's  Ex'rs,  50  Penn.  St.  75.  And  see 
Hill  on  Trustees,  140,  141  (4th  Am.  ed.);  Morgan  v.  Malleson,  L.  R.  10  Eq. 
475. 

*  Woodford  v.  Chamley,  28  Beav.  96.  In  Richardson  v.  Richardson, 
L.  R.  3  Eq.  686,  there  was  a  voluntary  assignment  of  all  the  personal  prop- 

126 


CHAP.   III.]  VOLUNTARY    SETTLEMENTS.  [§   102. 

§  102.  It  is  well  established  that  if  the  subject  of  the  trust  is 
an  equitable  interest,  the  cestui  que  trust  may  create  a  vaHd 
trust  by  executing  an  assignment  of  his  interest  to  a  new  trus- 
tee, for  the  equitable  interest  can  be  transferred  from  one  to 
another,  and  as  the  relation  of  trustee  and  cestui  que  trust  already 
exists,  the  original  settlor  need  not  be  called  upon  to  do  any  act.^ 
Lord  Justice  K.  Bruce  said:  "Suppose  stock  or  money  to  be 
legally  vested  in  A.  as  a  trustee  for  B.  for  life,  and  subject  to  B.'s 
life-interest  for  C.  absolutely,  surely  it  must  be  competent  for 
C,  in  the  lifetime  of  B.,  with  or  without  the  consent  of  A.,  to 
make  an  effectual  gift  of  his  interest  to  D.  by  way  of  pure 
bounty,  leaving  the  legal  interest  and  legal  title  untouched. 
If  so,  can  C.  do  this  better  or  more  effectually  than  by  executing 
an  assignment  to  D? "  ^  So  the  cestui  que  trust  can  assign  volun- 
tarily his  equitable  interest  to  a  stranger  in  trust  for  himself.' 
Or  by  a  new  declaration  of  trust  the  cestui  que  trust  can  direct 
the  old  trustees  to  hold  his  interest  thereafter  upon  new  trusts.* 
But  it  has  been  decided  that  a  voluntary  assignment  of  a  mere 
expectancy  in  an  equitable  interest  did  not  perfectly  create  a 
trust  that  the  court  would  enforce ;  that  any  dealing  with  what 
a  person  only  expects  to  have  must  in  some  sense  be  in  fieri.' 
And  if  a  settlor  intend  to  make  a  voluntary  settlement  in  a  par- 

erty,  whatsoever  and  wheresoever,  of  the  assignor.  There  were  promissory 
notes  not  indorsed  by  the  assignor,  but  it  was  held  to  be  a  complete  assign- 
ment of  them  in  trust. 

1  Sloan  V.  Cadogan,  Sugd.  Vend.  &  Pur.  App.  This  case  was  questioned 
in  Beatson  v.  Beatson,  12  Sim.  281,  but  it  has  since  been  acted  on.  Voyle 
V.  Hughes,  2  Sm.  &  Gif.  18;  Lambe  v.  Orton,  1  Dr.  &  Sm.  125;  Gilbert 
V.  Overton,  2  Hem.  &  M.  110;  Woodford  v.  Charnley,  28  Beav.  99;  Way's 
Settlement,  2  De  G.,  J.  &  Sm.  365,  reversing  4  New  R.  453.  And  see 
Reed  v.  O'Brien,  7  Beav.  32;  Bridge  v.  Bridge,  16  Beav.  315;  Gannon  v. 
White,  2  Ir.  Ch.  207;  Donaldson  v.  Donaldson,  1  Kay,  711. 

2  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  188. 

'  Sloan  V.  Cadogan,  ut  supra;  Cotteen  v.  Missing,  1  Mad.  176;  Godsall 
V.  Webb,  2  Keen,  99;  CoUins  v.  Patrick,  id.  123;  Wilcocks  v.  Hannyng- 
ton,  5  Ir.  Ch.  38. 

*  Rycroft  v.  Christy,  3  Beav.  238;  McFadden  i-.  Jenk>'n8,  1  Hare,  458; 
1  Phill.  153. 

*  Meek  v.  Kettlewell,  1  Hare,  464,  by  Sir  J.  Wigram,  affirmed  by  Lord 
Lyndhurst  in  1  Phill.  342. 

127 


§  103.]  EXPRESS   TRCSTS,    ETC.  [CHAP.    III. 

ticular  mode,  as  by  conveying  the  legal  title,  and  he  fails  to 
convey  the  title,  the  court  will  not  lend  its  aid  to  give  effect  to 
the  settlement  in  another  and  different  mode  as  by  converting 
the  attempted  conveyance  into  a  declaration  of  trust,  for  that 
would  be  to  convert  every  imperfect  voluntary  instrument  into 
a  perfect  trust.^ 

§  103.  In  case  of  a  sale  of  real  estate  for  a  valuable  consid- 
eration,  nothing  passes  by  the  deed,  although  it  is  signed  and 
sealed,  until  the  purchase-money  is  paid  and  the  deed  delivered 
to  the  vendee,  or  until  so  much  is  done  that  the  law  w^ill  con- 
strue the  deed  to  be  for  the  use,  or  under  the  control,  of  the 
vendee;  but  if  a  party  execute  a  voluntary  settlement  and  the 
deed  recites  that  it  is  sealed  and  delivered,  it  will  be  binding 
upon  the  settlor  although  he  never  parts  with  it,  but  keeps  it  in 
his  possession  until  his  death.^  (a)     Still,  if  there  are  circum- 

1  Milroy  v.  Lord,  8  Jur.  (n.  s.)  809;  [4  De  G.,  F.  &  J.  264],  Lister  v. 
Hodgson,  L.  R.  4  Eq.  30.      [See  supra,  §  96,  note.] 

'  In  re  Way's  Trust,  2  De  G.,  J.  &  Sm.  365;  Fletcher  v.  Fletcher,  4  Hare, 
67;  Hope  v.  Harman,  11  Jur.  1097;  Jones  v.  Obinchain,  10  Grat.  259;  Urann 
V.  Coates,  109  Mass.  581;  Sear  v.  Ash  well.  3  Swanst.  411;  Barlow  v.  Heneage, 
Pr.  Ch.  211;  Clavering  t^.  Clavering,  2  Vern.  474;  Cecil  v.  Butcher,  2  J.  &. 
W  573;  Gamons  v.  Knight,  5  B.  &  C.  671;  Exton  v.  Scott,  6  Sim.  31;  Hall 
V.  Palmer,  3  Hare,  532;  Souverbye  v.  Arden,  1  John--.  Ch.  240;  Bunn  v. 
Winthrop,  id.  329;  Boughton  v.  Boughton,  1  Atk.  625;  Brackenbury  k 
Brackenbury,  2  J.  &  W.  391 ;  Roberts  v.  Roberts,  Daniel,  143.  And  see  Cecil 
V.  Butcher,  2  J.  &  W.  565. 

(a)  It  has  been  held  in  a  recent  custody  of  the  assignor  as  truftee 
Maocsachusetts  case  that  a  voluntary  for  the  assignee,  but  never  dehvered, 
deed  of  transfer  in  trust  signed,  both  the  bonds  and  the  instrument 
sealed,  acknowledged  and  recorded,  remaining  in  the  possession  of  the 
but  not  dehvered,  is  ineffectual  to  assignor  until  after  his  death,  was 
create  a  trust  either  by  grant  or  as  a  held  ineffective  to  create  a  trust 
declaration  to  stand  seized.  Loring  The  case  was  distinguished  from  a 
V.  Hildreth,  170  Mass.  328.  In  previous  decision  of  Govin  v.  De  Mi- 
Govin  V.  De  Miranda,  76  Hun,  414,  randa,  140  N.  Y.  476,  where  the 
an  instrument  under  seal  without  same  person  signed,  but  did  not  de- 
consideration,  purporting  to  trans-  liver,  a  paper  stating  that  certain 
fer  and  dehver  certain  bonds  to  the  property  in  his  possession  belonged 
donee,  the  bonds  to  remain  in  the  to  certain  persons.    The  ground  of 

128 


CHAP,  III. 


VOLUNTARY  SETTLEMENT8. 


[§  104. 


stances  that  show  that  the  settlor  never  intended  the  deed, 
though  executed,  to  operate,  the  court  will  consider  them; 
and  if  the  deed  was  never  delivered  it  will  be  one  circumstance, 
and  it  may  be  a  controlling  circumstance,  to  show  that  the  trust 
was  never  perfectly  created  or  that  it  was  revocable.^ 

§  104.  A  completed  trust  without  reservation  of  power  of 
revocation  can  only  be  revoked  by  consent  of  all  the  cestuis} 

»  Uniacke  v.  Giles,  2  Moll.  257;  Antrobus  v.  Smith,  12  Ves.  39;  Birch  v. 
Blagrave,  Amb.  262;  Dillon  v.  Coppin,  2  M.  &  Cr.  647;  Platmone  v.  Staple, 
Coop.  250;  Naldred  v.  Gilham,  1  P.  Wms.  577;  Cotton  v.  King,  2  P.  Wms. 
358,  674;  Alexander  v.  Brame,  7  De  G.,  M.  &  G.  525;  Otis  v.  Beckwith,  49 
ni.  121. 

^  Sargent  v.  Baldwin,  60  Vt.  17.    [Thurston,  petitioner,  154  Mass.  596; 


distinction  was  that  the  paper  in  the 
last  cited  case  did  not  purport  to 
convey  anything  but  was  an  ac- 
knowledgment of  an  existing  trust. 
These  cases,  however,  can  be  dis- 
tinguished from  cases  where  the 
settlor  has  executed  a  formal  in- 
strument declaring  himself  trustee. 
There  seems  to  be  no  necessity  of 
deUvering  such  a  paper  to  the  bene- 
ficiary, since  there  is  no  intention 
of  transferring  the  legal  title  of  the 
property.  As  was  stated  in  the  per- 
tinent case  of  Smith's  Estate,  144 
Pa.  St.  428,  "The  question  in 
such  case  is  not  so  much  whether 
in  the  lifetime  of  the  decedent  the 
declaration  was  actually  exhibited 
to  the  inspection  of  others,  as 
whether  under  all  the  circumstances 
of  the  case,  it  would  appear  to  have 
been  written  and  preserved  for  the 
inspection  of  others."  See  also 
Johnson  v.  Amberson,  140  Ala.  .342 
Collins  V.  Steuart,  58  N.  J.  Eq.  392 
Janes  v.  Falk,  50  N.  J.  Eq.  468 
Eshback's  Estate,  197  Pa.  St.  153 
Fowler  v.  Gowing,  152  Fed.  801 
(N.  Y.). 

When  the  deed  is  in  the  form  of 
VOL.  I. — 9 


a  conveyance  to  another  as  trustee, 
delivery  will  be  presumed,  though 
not  conclusivel}^,  when  the  settlor 
has  had  the  deed  recorded.  Walker 
V.  Crews,  73  Ala.  412,  417.  The 
trustee's  written  acceptance  on  the 
deed  conclusively  shows  delivery. 
New  South  Ass'n  v.  Gann,  101 
Ga.  678;  Chilvers  v.  Race,  196  111. 
71.  It  has  been  held  that  the  mere 
failure  to  deliver  the  deed  to  the 
trustee  in  case  of  a  family  settle- 
ment will  not  prevent  it  from  opera- 
ting. Tarbox  v.  Grant,  56  N.  J.  Eq. 
199.  In  a  recent  English  case  of  a 
voluntary  indenture  of  trust  by  way 
of  settlement,  where  the  deed  was 
signed  by  the  settlor  but  not  by  the 
trustee,  and  the  latter  never  accepted 
but  disclaimed  the  trust  and  the 
conveyance,  it  was  held  that  the 
trust  was  nevertheless  fully  es- 
tablished, the  settlor  himself  becom- 
ing trustee  upon  the  disclaimer. 
The  disclaimer  was  held  to  throw  the 
legal  title  back  into  the  settlor  ab 
initio,  but  not  to  destroy  the  effect  of 
the  deed  in  creating  tlie  trust.  Mal- 
lot  V.  Wilson,  [1903]  2  Ch.  494.  See 
also  Jones  y.  Jones,  W.N.  [1874]  190. 

129 


§  104.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    HI. 

If  a  voluntary  trust  for  the  benefit,  wholly  or  partly,  of  some 
person  or  persons  other  than  the  grantor  *  is  once  perfectly  cre- 
ated, and  the  relation  of  trustee  and  cestui  que  trust  is  once  es- 
tablished, it  will  be  enforced,  though  the  settlor  has  destroyed 
the  deed,"  or  has  attempted  to  revoke  it  by  making  a  second  vol- 
untary settlement  of  the  same  property  or  otherwise,^  or  if  the 

Keyes  v.  Carleton,  141  Mass.  45;  Crue  v.  Caldwell,  52  N.  J.  L.  215,  220; 
Dickerson's  Appeal,  115  Pa.  St.  198,  210;  Haxton  ;;.  McClaren,  132  Ind. 
235;  Lines  v.  Lines,  142  Pa.  St.  149;  Stockett  v.  Ryan,  176  Pa.  St.  71; 
Beekman  tf.  Hendrickson,  21  A.  567  (N.  J.).] 

'  Light  V.  Scott,  88  111.  239. 

2  Tolar  V.  Tolar,  1  Dev.  Eq.  456;  Dawson  v.  Dawson,  id.  93,  396;  In  re 
Way's  Trust,  10  Jur.  837;  2  De  G.,  J.  &  Sm.  365;  Ritter's  App.  59  Penn. 
St.  9. 

^  Newton  v.  Askew,  11  Beav.  145;  Rycroft  v.  Christy,  3  Beav.  238; 
Bough  ton  V.  Bough  ton,  1  Atk.  625;  Brackenbury  v.  Brackenbury,  2  J.  & 
W.  391;  Clavering  v.  Clavering,  2  Vem.  473;  Roberts  v.  Roberts,  Daniel, 
143;  Cook  v.  Fountain,  3  Swans.  565;  Young  v.  Peachy,  2  Atk.  254;  Cecil 
V.  Butcher,  2  J.  &  W.  565;  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  176; 
In  re  Way's  Trust,  2  De  G.,  J.  &  S.  365;  Hildreth  v.  Ehot,  8  Pick.  293; 
Stone  V.  Hackett,  12  Gray,  227;  Falk  v.  Turner,  101  Mass.  494;  Souverbye 
I'.  Arden,  1  Johns.  Ch.  240;  Bunn  v.  Winthrop,  id.  329;  Dennison  v.  Goehr- 
ing,  7  Barr,  175;  Viney  v.  Abbott,  109  Mass.  302;  Sewall  v.  Roberts,  115 
Mass.  272;  Cobb  v.  Knight,  74  Maine,  253;  Gulick  v.  Guhck,  39  N.  J.  Eq. 
401;  Williams  v.  Vreeland,  32  id.  135;  McPherson  v.  Rollins,  107  N.  Y. 
316;  Nearpass I'.  Newman,  106  N.  Y.47;  Meigs  v.  Meigs,  22  Hun  (N.  Y.),  453. 
As  where  A.  had  a  poUcy  of  insurance  issued  on  his  hfe  "in  trust"  for  his 
children,  and  notified  the  cestuis  and  paid  the  premiums  for  several  years, 
it  was  held  that  he  could  not  revoke  the  interest  of  his  children,  and  a 
second  pohcy  issued  substantially  as  a  continuation  of  the  first,  but  made 
payable  to  A.'s  widow,  was  held  for  the  children.  Garner  v.  Ger.  L.  Ins.  Co., 
110  N.  Y.  266.  It  must  be  observed,  however,  that  the  absence  of  a  power 
to  revoke  a  voluntary  settlement  or  trust  is  viewed  by  courts  of  equity  as 
a  circumstance  of  suspicion,  and  very  sHght  evidence  of  mistake,  misappre- 
hension, or  misunderstanding  on  the  part  of  the  settlor  will  be  laid  hold  of 
to  set  aside  the  deed.  The  following  opinion  by  the  Chancellor  (Runyon)  in 
a  late  case  in  New  Jersey,  Gamsey  v.  Mundy,  24  N.  J.  Eq.  243,  reprinted  in 
13  Am.  Law  Reg.  (n.  s.)  345;  ^\-ith  a  learned  note  by  Mr.  Bispham,  gives  a 
very  clear  view  of  the  law  applicable  to  voluntary  settlements  without  a 
power  of  revocation  made  under  circumstances  which  may  lead  to  the  con- 
clusion that  the  settlor  did  not  intend  to  put  the  property  entirely  beyond 
his  control  or  that  he  acted  unadvisedly  or  improvidently:  — 

"On  the  4th  of  July,  1861,  the  complainant,  Sarah  M.  Gamsey,  who 
was  then  a  single  woman  (her  maiden  name  being  Sarah  M.  Mundy),  and 

130 


CHAP.   III.]  VOLUNTARY    SETTLEMENTS.  [§   104. 

estate,  bj^  some  accident,  afterwards  becomes  revested  in  the 
settlor.^    In  all  these  cases  the  first  perfectly  created  trust  will 

of  the  age  of  about  twenty-one  years,  waa  seized  in  her  own  right,  in  fee 
in  possession,  through  inheritance  from  her  father,  James  Mundy,  de- 
ceased, of  a  parcel  of  unimproved  farming  land  of  about  seven  acres  in 
Middlesex  County  in  this  State,  and  was  also  the  owner  of  an  undivided 
third  of  the  remainder,  in  fee,  of  two  other  lots  there,  —  one  a  wood-lot 
of  about  two  acres,  and  the  other  the  house-lot,  containing  about  nine  and 
a  half  acres,  which  had  been  set  off  to  her  mother,  Elizabeth  Mundy,  in 
dower.  She  had  no  other  property,  real  or  personal.  By  a  deed  of  that 
date  she  conveyed  in  fee  to  her  mother,  for  the  expressed  consideration  of 
natural  love  and  affection  to  the  grantor's  daughter,  Elmina  May,  and  of 
fifty  cents  to  her  paid  by  her  mother,  the  whole  of  said  property  on  the 
following  trust:  'That  the  said  Elizabeth  Mundy  shall  and  will  hold,  use, 
occupy,  and  rent  the  same,  and  receive  the  rents,  issues,  and  profits  thereof 
to  and  for  the  maintenance  of  said  Elmina  May  Mundy  until  she  shall 
arrive  at  the  age  of  twenty-one  years,  or  in  case  of  her  death,  the  said 
Elizabeth  Mundy,  her  heirs  or  assigns,  shall  pay  the  rents  or  profits  arising 
as  above  to  the  said  Sarah  M.  Mundy,  and  in  further  trust  to  convey 
the  land  and  premises  with  the  appurtenances  herein  before  mentioned, 
in  fee-simple,  to  the  said  Elmina  Ma}'^  Mundy,  or  in  equal  shares  to  her 
and  any  other  children  of  said  Sarah  M.  Mundy  (should  there  be  any 
other),  when  the  youngest  of  said  children  shall  have  attained  the  age  of 
twenty-one  years;  and  in  the  event  that  no  issue  of  the  said  Sarah  M. 
Mundy  shall  survive  to  inherit  the  same,  that  the  estate  herein  named 
shall  be  conveyed  according  to  the  direction  of  the  executor  of  the  will  of 
the  said  Sarah  M.  Mundy  heretofore  made.' 

"In  1864  Sarah  M.  Mundy  was  married  to  Silas  Gamsey.  The  bill  is 
filed  by  her  and  her  husband  against  her  two  children  and  her  mother, 
the  trustee,  to  set  aside  the  deed.  The  property  at  the  time  of  making  the 
conveyance  in  question  was  and  still  is  of  but  little  value  as  farming  land. 
The  buildings  upon  the  house-lot,  which  alone  was  improved,  were  old 
and  dilapidated  and  have  gone  to  decay,  and  even  the  fences  on  the  prem- 
ises are  down.  The  trustee,  who  is  a  woman  of  advanced  age,  was  and  is 
wholly  without  means,  except  her  dower.  The  deed  is  voluntary.  It  was 
made  at  the  suggestion  and  on  the  advice  of  the  grantor's  mother,  and  of 


1  Ellison  V.  Ellison,  6  Ves.  656;  Smith  v.  Lyne,  2  Y.  &  Col.  345;  Pat- 
erson  v.  Murphy,  11  Hare,  88;  Gilchrist  v.  Stevenson,  9  Barb.  9;  Uzzle  v. 
Wood,  1  Jones,  Eq.  226;  Browne  v.  Cavendish,  1  J.  &  L.  637.  See  also 
Aylsworth  v.  Whitcomb,  13  R.  I.  298,  where  it  is  said,  if  deliberate  intent 
to  make  it  irrevocable  does  not  appear,  the  absence  of  power  of  revocation 
will  be  pri?na  facie  evidence  of  mistake.  Estes  v.  Tillinghast,  4  R.  I.  276; 
Russell's  App.,  75  Penn.  St.  269. 

131 


§    104.]  EXPRESS    TRUSTS,    ETC.  [cilAP.    III. 

be  upheld,  with  all  its  consequences,  and  the  settlor  will  be  de- 
clared to  be  a  trustee.^    A  trust  once  created  and  accepted  with- 

her  uncle,  Dr.  Jacob  Martin,  her  mother's  brother.  The  grantor  neither 
Ijroposed  nor  suggested  it.  Indeed,  it  appears  she  knew  nothing  of  it 
until  it  was  presented  to  her  for  her  signature,  and  she  was  urged  by  her 
mother  and  her  uncle  to  execute  it,  'for  her  good.'  Their  motive,  they 
say,  was  to  save  the  property  for  her,  to  prevent  her  from  improvidently 
disposing  of  it.  No  professional  advice  whatever  was  taken.  The  deed 
was  drawn  by  a  son  of  Dr.  Martin,  at  the  latter's  direction;  and  its  exe- 
cution was  witnessed  by  Dr.  Martin,  who,  being  a  commissioner  of  deeds, 
took  the  grantor's  acknowledgment.  The  grantor  had  no  advice  what- 
ever, except  that  which  her  mother  and  uncle  gave  her.  Not  only  was  she 
not  consulted  in  regard  to  the  matter  in  any  way.  but  it  was  clear  that 
she  did  not  understand  the  provisions  of  the  deed,  nor  their  effect.  She 
did  not  suppose  that  the  effect  of  the  conveyance  would  be  to  place  the 
property  beyond  her  reach  and  control.  Nay,  her  mother  and  uncle  both 
supposed  that  the  trust  was  revocable,  and  that  the  grantor  under  it 
retained  full  power  to  sell  the  property,  with  the  trustee's  consent.  The 
conveyance  not  only  deprived  the  grantor  of  all  her  property,  without  re- 
serving a  power  of  revocation  to  enable  her  to  meet  the  exigencies  of  life, 
but  the  arrangement  which  it  made  was  in  other  respects  injudicious, 
disadvantageous,  and  improvident.  The  motives  and  intentions  of  the 
mother  and  uncle  were  most  praiseworthy.  Their  design  manifestly  was 
simply  to  put  the  property  in  such  a  position  that  the  grantor  could  not 
dispose  of  it  without  her  mother's  consent  and  concurrence.  They  in 
good  faith  urged  her  to  make  the  deed.  She  and  they  were  alike  under 
an  erroneous  impression  as  to  the  effect  of  it.  From  the  operation  of  such 
a  conveyance,  made  under  such  circumstances,  equity  will  relieve  the 
complainants.  The  rigidity  of  the  ancient  doctrine,  that  a  voluntary 
settlement,  not  obtained  by  fraud,  is  binding  on  the  settlor,  and  will  not 
be  set  aside  in  equity,  although  the  settlor  has  not  reserved  a  power  of  re- 
vocation (Villers  v.  Beaumont,  1  Vern.  100;  Petre  v.  Espinasse,  2  M.  &  K. 
496;  Bill  v.  Cureton,  2  M.  &  K.  503),  has  been  relaxed  by  modern  decisions. 
In  the  case  first  cited,  Villers  v.  Beaumont,  decided  in  1682,  the  Lord  Chan- 
cellor said:  'If  a  man  will  improvidently  bind  himself  up  by  a  voluntary 
deed,  and  not  reserve  a  liberty  to  himself  by  a  power  of  revocation,  this 
court  will  not  loose  the  fetters  he  hath  put  on  himself,  but  he  must  lie 
down  under  his  own  folly.'  Recent  cases,  however,  have  narrowed  the 
doctrine,  and  have  held,  not  only  that  the  absence  of  a  power  of  revocation 
throws  on  the  person  seeking  to  uphold  the  settlement  the  burden  of  prov- 
ing that  such  a  power  was  intentionally  excluded  by  the  settlor,  and  that  in 
the  absence  of  such  proof,  the  settlement  may  be  set  aside,  but  that  equity 


1  Ellison  V.  Ellison,  6  Ves.  656;   Smith  v.  Lyne,  2  Y.  &  Col.  345;  Pat- 
erson  t;.  Murphy,  11  Hare,  88;  Gilchrist  v.  Stevenson,  9  Barb.  9. 

132 


CHAP.  III.] 


VOLUNTARY    SETTLEMENTS. 


[§  104. 


out  reservation  of  power  can  only  be  revoked  by  the  full  con- 
sent of  all  parties  in  interest;  ^   if  any  of  the  parties  are  not  in 

will  set  aside  the  settlement  on  (he  application  of  the  settlor,  when  it  ap- 
pears that  he  did  not  intend  to  make  it  irrevocable,  or  when  the  settlement 
would  be  unreasonable  or  improvident,  for  the  lack  of  a  provision  for  rev- 
ocation.(a)       In  Everitt  v.   Everitt   (1870),  L.  R.  10  Eq.  405,  —  a  case 


1  Helman  v.  McWilliams,  70  Cal.  449.  [Ewing  v.  Warner,  47  Minn.  446; 
Nelson  v.  Rathflf,  72  Miss.  656;  Strong  v.  Weir,  47  S.  C.  307,  323;  Riggan's 
Adm'r  v.  Riggan,  93  Va.  78.] 


(a)  Several  decisions  in  Penn- 
sylvania seem  to  hold  that  a  volun- 
tary trust  settlement  which  is  testa- 
mentary in  its  nature  is  revocable 
by  the  settlor,  although  no  power 
of  revocation  has  been  inserted  in 
the  settlement.  Frederick's  Appeal, 
52  Pa.  St.  338;  Rick's  Appeal,  105  Pa. 
St.  528;  Rife's  Appeal,  110  Pa.  St. 
232;  Chestnut  St.  Bank  v.  FideUty 
Insurance  Co.,  186  Pa.  St.  333.  But 
later  decisions  have  restricted  the  ap- 
parent scope  of  these  decisions,  and 
it  now  seems  to  be  law  in  Pennsylva- 
nia that  power  to  revoke  such  a 
settlement  will  not  be  implied,  and, 
if  the  settlement  itself  is  a  valid 
trust,  it  is  revocable  only  in  accord- 
ance ^dth  its  express  terms.  Kraft 
V.  Neuffer,  202  Pa.  St.  558;  Fry  v. 
Mercantile  Trust  Co.,  207  Pa.  St. 
640;  Rynd  v.  Baker,  193  Pa.  St.  486; 
Wilson  V.  Anderson,  186  Pa.  St.  531 ; 
Potter  V.  Fidehty  Ins.  Tr.  etc.  Co., 
199  Pa.  St.  360. 

It  is  a  general  nile  in  the  United 
States  that  a  power  of  revocation 
is  not  a  necessary  incident  of  a  volun- 
tary settlement  for  the  benefit  of 
the  settlor  for  hfe  and  will  not  be 
implied  merely  from  the  absence 
of  an  express  provision  against 
revocation.  Crumlish  v.  S.  T.  & 
S.  D.  Co.,  8  Del.  Ch.  375;  Bunten 


V.  Am.  Security  &  Tr.  Co.,  25  App. 
D.  C.  226;  Lawrence  v.  Lawrence, 
181  lU.  248;  Richards  v.  Reeves, 
149  Ind.  427;  Anderson  v.  Kemper, 
116  Ky.  339;  Krankel's  Ex'x  v. 
Krankel,  104  Ky.  745;  Coleman  v. 
Fidehty  Tr.  Co.,  91  S.  W.  716  (Ky. 
1906);  Dayton  v.  Stewart,  99  Md. 
643;  CarroU  v.  Smith,  99  Md.  653; 
Rogers  v.  Rogers,  97  Md.  573; 
Brown  v.  Mercantile  Tr.  Co.,  87 
Md.  377;  Lovett  v.  Famham,  169 
Mass.  1;  Taylor  v.  Buttrick,  165 
Mass.  547;  Sands  v.  Old  Colony 
Tr.  Co.,  195  Mass.  575;  Thurston, 
Petitioner,  154  Mass.  596;  Keyes 
V.  Carleton,  141  Mass.  45:  Hackley 
V.  Littoll,  150  Mich.  106;  Crue  v. 
CaldweU,  52  N.  J.  Law,  215;  Smith 
V.  Boyd,  61  N.  J.  Eq.  175;  Stockett 
V.  Ryan,  176  Pa.  St.  71;  Neisler  v. 
Pearsall,  22  R.  I.  367;  Wallace  v. 
Industrial  Tr.  Co.,  73  A.  25  (R.  I. 
1909);  Monday  v.  Vance,  92  Tex. 
428;  Wade  v.  Button,  72  Vt.  136. 

Where,  however,  it  appears 
from  all  the  circumstances  that 
undue  influence  was  exerted  upon 
the  settlor  or  that  the  omission  of 
a  power  of  revocation  was  due  to 
fraud,  accident  or  mistake,  or  that 
the  settlement  would  be  unreason- 
able or  improvident  for  lack  of  a 
provision  for  revocation,  equity  will 
133 


§  104.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

being,  or  are  not  sui  juris,  it  cannot  be  revoked  at  all.^  It  is 
perfectly  clear  that  where  the  settlor  did  not  misapprehend  the 

almost  precisely  similar  in  its  facts  to  that  under  consideration,  —  a  vol- 
untary settlement  was  set  aside  on  the  application  of  the  donor.  The 
court  said :  '  It  is  very  difficult  indeed  for  any  voluntary  settlement,  made 
by  a  3'oung  lady  so  soon  after  she  attained  twenty-one,  to  stand,  if  she 
afterwards  changes  her  mind  and  wishes  to  get  rid  of  the  fetters  which  she 
has  been  advised  to  put  upon  herself.' 

"In  Wollaston  v.  Tribe  (1869),  L.  R.  9  Eq.  44,  a  voluntary  gift  which 
was  not  subject  to  a  power  of  revocation,  but  was  meant  to  be  irrevocable, 
was  held  to  be  invahd,  and  was  set  aside  on  the  donor's  application.  In 
pronouncing  the  decree,  the  court  said :  *  Of  course  a  volimtary  gift  is  per- 
fectly good  if  the  person  who  makes  it  knows  what  it  is,  and  intended  to 
carry  it  into  execution.'  In  Coutts  v.  Acworth,  L.  R.  8  Eq.  558,  it  was 
held  that  '  Where  the  circumstances  are  such  that  the  donor  in  a  voluntary 
settlement  of  gift  ought  to  be  ad\ased  to  retain  a  power  of  revocation,  it 
is  the  duty  of  the  solicitor  to  insist  on  the  insertion  of  such  power,  and 
the  want  of  it  will  in  general  be  fatal  to  the  deed.'  In  Prideaux  v.  Lons- 
dale (1863),  1  De  G.,  J.  &  S.  433,  a  voluntary  settlement,  which  the  settlor 
was  advised  to  execute  by  persons  under  whose  influence,  as  regarded 


1  Shaw  V.  Delaware,  &c.  R.  R.  Co.,  3  Stockt.  229. 

set  the  settlement  aside.    Smiths,  tion,  is  the  free  determined  act  of  the 

Boyd,  61  N.  J.  Eq.  175,  47  A.  816;  party  making  it;  and  the  absence 

Lawrence  v.  LawTence,  181  111.  248,  of  advice  as  to  the  insertion  of  a 

54N.E.  918;  Richards  V.Reeves,  149  power  of  revocation,  is  a  circmn- 

Ind.  427,  49  N.  E.  348;  Brown  v.  stance,  and  a  circumstance  merely, 

Mercantile     Trust     Co.,    87    Md.  to  be  weighed  in  connection  with 

377,  40  A.  256.     The  decision  of  the    other    circumstances    of    the 

Brown    v.    Mercantile    Trust     Co.  case." 

uU  supra,  adopts  the  rule  as  stated  If  express   power  of  revocation 

in  Toker  v.  Toker.  3  De  G.,  J.  &  S.  has  been  reserved  by  the  settlor  it 

491:  "That  the  absence  of  a  power  can  be  effectively  exercised  only  in 

of  revocation  may  be  evidence  that  the  manner  prescribed  by  the  trust 

the  party  did  not  understand  the  instrument.    Thus  if  the  trust  deed 

transaction  and  so  of  undue  influence  provides    that    the    trusc    may    be 

But  whether  it  would  be  so  or  not,  revoked    by    an    indenture    signed 

would  depend  upon  all  the  circum-  by  both  the  trustee  and  the  settlor, 

stances  of  the  case.  .  .  .  What  the  who  is  the  life  beneficiaiy,  it  cannot 

court  has  to  be  satisfied  of  in  these  be  terminated  by  a  simple  written 

cases,    I    apprehend,    is    that    the  notice  sent  by  the  settlor  to   the 

settlement    whether    containing    or  trustee.      Lippincott    v.    Williams, 

not  containing  a  power  of  revoca-  63  N.  J.  Eq.  130,  51  A.  467. 
134 


CHAP.  III.]  VOLUNTARY   SETTLEMENTS.  [§  104. 

contents  of  the  deed,  and  there  was  no  fraud  or  undue  influence, 
and  no  power  of  revocation  was  reserved,  the  settlor  is  bound, 

money  matters,  she  was,  and  which  subjected  her  property  to  trusts  and 
contained  provisions  which  the  court  thought  it  was  impossible  to  suppose 
she  understood,  and  against  which  she  ought  to  have  been  advised  and 
cautioned,  was  set  aside.  In  Hall  v.  Hall,  L.  R.  14  Eq.  365,  it  was  held 
that  a  voluntary  settlement  should  contain  a  power  of  revocation;  and  if 
it  does  not,  the  parties  who  rely  on  it  must  prove  that  the  settlor  was  prop- 
erly advised  when  he  executed  it,  and  that  he  thoroughly  understood 
the  effect  of  omitting  the  power,  and  that  he  intended  to  be  excluded 
from  the  settlement,  and  further,  if  that  is  not  established,  and  the  court 
sees  from  the  surrounding  circumstances  that  the  settlor  believed  the  in- 
strument to  be  revocable,  it  will,  even  after  the  lapse  of  twenty  years,  and 
the  death  of  the  settlor,  interfere  and  give  relief  against  it.  The  decree 
in  that  case  was  reversed.  (1873,  L.  R.  8  Ch.  App.  430.)  In  his  opinion, 
Selbome,  L.  C,  said:  'The  absence  of  a  power  of  revocation  in  a  volun- 
tary deed,  not  impeached  on  the  ground  of  any  undue  influence,  is  of 
course  material  where  it  appears  that  the  settlor  did  not  intend  to  make  an 
irrevocable  settlement,  or  where  the  settlement  itself  is  of  such  a  nature  or 
was  made  under  such  circumstances  as  to  be  unreasonable  and  improvident, 
unless  guarded  by  a  power  of  revocation.'  Forshaw  v.  Welsby,  30  Beav. 
243,  was  a  case  where  a  voluntary  settlement  was  made  by  one,  in  extremis, 
on  his  family.  It  contained  no  power  of  revocation  in  case  of  the  settlor's 
recovery.  On  his  recovery  it  was  set  aside  on  his  application,  on  the  ground 
that  it  was  not  executed  with  the  intention  that  it  should  be  operative  in 
case  of  his  recovery  from  his  illness.  See  also  Huguenin  v.  Baseley,  Lead. 
Cas.  in  Eq.  406;  Cook  v.  Lamotte,  15  Beav.  241;  Sharp  v.  Leach,  31  Beav. 
491;  Phillipson  v.  Kerrj^,  32  Beav.  628.  It  is  not  necessary,  however,  to  rest 
a  decision  of  this  case  adverse  to  the  deed  on  so  narrow  a  foundation  as  the 
mere  absence  of  a  power  of  revocation.  The  circumstances  under  which  a 
voluntary  deed  was  executed  may  be  shown,  with  a  view  of  impeaching  its 
vahdity,  and  if  it  appears  that  it  was  fraudulent  or  improperly  obtained, 
equity  will  decree  that  it  be  given  up  and  cancelled.  In  the  present  case 
there  is  no  room  for  doubt  that  the  grantor  was  induced,  by  those  in  whom 
she  very  justly  placed  confidence,  and  by  whose  better  judgment  she  was 
willing  to  be  guided,  to  execute  a  voluntary  deed  whose  effect  she  and  they 
not  only  did  not  understand,  but,  on  the  other  hand,  misapprehended;  and 
which,  so  far  from  being  according  to  their  intentions,  was  in  two  ver>'  im- 
portant respects,  at  least,  admittedly  precisely  the  reverse.  It  was  irrevo- 
cable ;  but  they  all  supposed  it  was  revocable,  and  intended  that  it  should  be 
so.  It  deprived  the  grantor  of  the  power  of  sale;  but  they  all  supposed  that 
she  would  have  that  power,  and  intended  that  she  should  have  it,  clogged 
only  by  the  necessity  of  obtaining  her  mother's  consent  and  concurrence 
in  any  bargain  or  conveyance  she  might  make.  The  deed  contains  no 
power  of  sale  whatever.    The  testimonj'  of  all  the  parties  to  the  transao- 

135 


§   104.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

though  some  contingency  was  forgotten  and  unprovided  for.^ 
A  policy  of  insurance  on  the  life  of  A.,  payable  to  his  mother, 
who  furnished  a  portion  of  the  money,  is  a  trust  which  cannot 
be  revoked  by  a  surrender  of  the  policy,  without  the  mother's 
consent,  and  the  issue  of  a  new  one  in  favor  of  A.'s  wife.-  The 
effect  of  the  delivery  of  the  deed  of  trust  cannot  be  impaired 
by  any  mental  reservation  of  the  grantor,  or  oral  condition  re- 
pugnant to  the  terms  of  the  deed.'^  But  where  the  trust  deed 
was  never  delivered  to  the  trustee  except  for  safe  keeping,  and 
on  the  understanding  that  it  should  be  returned  for  cancella- 
tion on  demand,  and  with  the  consent  of  the  cestui  it  was  so  re- 
turned and  cancelled,  no  trust  arose.''  If  the  voluntary  settle- 
ment be  subject  to  a  life  estate  in  the  settlor,  and  also  subject  to 
such  debts  as  he  contracts  during  his  life,  he  can  defeat  the  trust  by 
contracting  debts  to  the  full  amount  of  the  estate,  even  if  the  debts 
are  contracted  by  giving  voluntary  bonds  for  the  purpose  of  de- 
feating the  settlement.^  If,  however,  the  settlor  has  not  reserved 
the  right  to  revoke  the  settlement,  or  to  charge  it  with  his  debts, 
he  can  do  nothing  to  impair  the  rights  of  those  in  remainder.^ 

tion  —  the  grantor,  her  mother  and  uncle  —  haa  been  taken  in  the  cause. 
It  satisfies  me  that  the  deed  was  not  *  the  pure,  voluntary,  well-understood 
act  of  the  grantor's  mind'  (Lord  Eldon  in  Huguenin  v.  Baseley),  but  was 
unadvised  and  improvident,  and  contrary  to  the  intention  of  aU  of  them. 
The  fact  that  the  infant  children  of  the  grantor  are  beneficiaries  under 
the  deed  will  not  prevent  the  court  from  setting  it  aside.  Huguenin  v. 
Baseley,  Everitt  v.  Everitt,  uhi  sup.  There  will  be  a  decree  that  the  deed 
be  delivered  up  to  be  cancelled."  See  also  Rhodes  v.  Bates,  L.  R.  1  Ch. 
252;  Leach  v.  Farr,  13  Am.  Law  Reg.  350  (n.  s.);  Villers  v.  Beaumont, 
1  Vem.  99;  Bridgman  v.  Greene,  2  Ves.  627;  Petre  v.  Espinasse,  2  M.  & 
K.  496;  Bill  v.  Cureton,  id.  511;  Hastings  v.  Ord.  11  Sim.  205;  Coutts  v. 
Acworth,  L.  R.  8  Eq.  538;  Phillips  v.  Mullings,  L.  R.  7  Ch.  244;  Hall  v. 
Hall,  L.  R.  8  Ch.  430;  Toker  v.  Toker,  3  De  G.,  J.  &  S.  487;  Evans  v.  Rus- 
sell, 31  Leg.  Int.  125. 

*  Keyes  v.  Carleton,  141  Mass.  45,  50. 

2  Pingrey  v.  Nat'l  Ins.  Co.,  144  Mass.  374,  382. 

'  Wallace  v.  Berdell,  97  N.  Y.  13. 

"  Burroughs  v.  De  Couts,  70  Cal.  361 

^  Markwell  v.  Markwell,  34  Beav.  12. 

•  Aubuchon  v.  Bender,  44  Mo.  560;  Dean  v.  Adler,  30  Md.  147;  Hall 
».  Hall,  L.  R.  14  Eq.  365;  Beal  v.  Warren,  2  Gray,  447. 

136 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  105. 

Although  the  power  of  revocation  is  reserved,  the  trust  is 
as  good  and  effectual  as  if  irrevocable,  until  the  power  is 
exercised.^  (a)  Where  the  trust  does  not  break  the  natural 
course  of  descent  of  the  property,  and  is  not  needed  for  the  pro- 
tection of  tlie  life  cestui,  who  is  the  grantor,  equity  will,  on 
application  of  the  cestui,  terminate  the  trust  and  decreeacon\^ey- 
ance.-  In  this  case  the  trust  was  made  by  a  woman  before 
marriage  for  herself  for  life,  remainder  to  her  appointees  by  will, 
or  her  heirs-at-law,  if  she  died  intestate.  After  marriage  she 
applied  for  a  conveyance  and  discharge  of  the  trust,  and  as  the 
natural  descent  was  not  broken,  and  the  laws  of  the  State  suflS- 
ciently  protected  married  women,  the  request  was  granted. 

§  105.  Nor  is  notice  to  the  cestui  que  iru^t  or  to  the  trustee,  and 
acceptance  by  him,  essential  to  the  validity  of  a  voluntary  trust 
as  against  the  settlor,  if  it  is  otherwise  perfectly  created.^  But  the 
absence  of  notice  may  become  a  fact  of  more  or  less  importance 
in  determining  whether  the  trust  is  perfectly  created  or  not.'* 

1  Van  Cott  V.  Prentice,  104  N.  Y.  45.  [Von  Hesse  v.  MacKaye,  136  N.  Y. 
114;  Hiserodt  v.  Hamlett,  74  Miss.  37,  47;  Charles  v.  Burke,  60  L.  T.  380,  43 
Ch.  Div.  223,  note;  Lines?;.  Lines,  142  Pa.  St.  149;  Witherington  v.  Herring, 
140  X.  C.  495;  Seaman  v.  Harmon,  192  Mass.  5;  Kelley  v.  Snow,  185  Mass. 
288;  Kelly  v.  Parker,  181  111.  49;  Schreyer  v.  Schreyer,  101  N.  Y.  App. 
Div.  456  (aff'd  182  N.  Y.  555);  Brown  v.  Spohr,  87  N.  Y.  App.  Div.  522, 
84  N.  Y.  S.  995;  Nichols  v.  Emery,  109  Cal.  323.] 

-  Nightingale  v.  Nightingale,  13  R.  L  116. 

'  Tate  V.  Leithhead,  Kay,  658;  Donaldson  v.  Donaldson,  id.  711;  Roberts 
V.  Lloyd,  2  Beav.  376;  Burn  v.  Carvalho,  4  M.  &  Cr.  690;  Sloper  v.  Cottrell, 
6  El.  &  Bl.  504;  Gilbert  v.  Overton,  2  Hem.  &  Mill.  110;  Kckewich  v.  Man- 
ning, 1  De  G.,  M.  &  G.  176;  Tiemey  v.  Wood,  19  Beav.  330;  Lamb  v.  Orton, 
1  Dr.  &  Sm.  125;  Meux  v.  Bell,  1  Hare,  73;  Otis  v.  Beckwith,  49  111.  121. 
ISee  City  of  Marquette  v.  Wilkinson,  119  Mich.  413;  Libby  v.  Frost,  98 
Me.  288.] 

*  Beatson  v.  Beatson,  12  Sim.  281;  Meek  v.  Kettlewell,  1  Hare,  476; 

(o)  Such  power  to  revoke,  even  assignee.      .Jones    v.    Clifton,     101 

when  coupled  with  a  power  of  ap-  U.   S.   225;   Brandies  v.   Cochrane, 

pointment,  is  not  such  an  interest  112  U.  S.  344;  Hill  v.  Cornwall,  95 

in  the  property  as  can  be  transferred  Ky.  512.      But  see  In  re  Morgan's 

to    another,    sold    under    execution  Estate,  223  Pa.  St.  228;  Ullman  i-. 

or  dcN-ised  by  will,  or  passed  to  an  Cameron,  92  App.  Div.  (N.  Y.)  91. 


13 


§  107.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

As  between  purchasers  for  value,  notice  or  no  notice  may  have 
important  effects;  but  a  voluntary  trust,  as  between  the  settlor, 
the  trustee,  and  the  cestui  que  trust,  can  be  perfectly  created 
without  it. 

§  106.  Under  the  statute  of  uses,  uses  could  be  raised  either 
upon  a  valuable  or  pecuniary  consideration,  or  upon  what  was 
called  a  good  or  meritorious  consideration;  that  is,  a  considera- 
tion arising  out  of  blood,  marriage,  or  family  affection,  and  the 
moral  obligation  that  every  one  is  under  to  provide  for  his 
family  or  relations.  Thus,  a  covenant  to  stand  seized  to  the 
uses  of  a  stranger,  founded  upon  a  valuable  consideration,  oper- 
ated under  the  statute  as  a  deed  of  bargain  and  sale  to  be  en- 
rolled, and  conveyed  the  land  to  the  stranger.  But  a  covenant 
in  consideration  of  blood  or  marriage,  to  stand  seized  to  the  use 
of  a  wife  or  child  or  other  relation,  created  a  use  only  in  the 
cestui  que  trust,  and  the  deed  need  not  be  enrolled.  In  all 
cases  the  consideration  of  this  conveyance  was  the  foundation  of  it. 
Therefore,  a  covenant  to  stand  seized  to  the  use  of  a  stranger  in 
consideration  of  love  or  affection  for  him  was  inoperative  for 
want  of  a  consideration;  and  a  covenant  in  consideration  of 
blood  or  marriage,  to  stand  seized  to  the  use  of  a  relative  and  a 
stranger,  vested  the  whole  use  in  the  relative,  and  was  inopera- 
tive as  to  the  stranger.  From  this  brief  statement  can  be  seen 
the  effect  and  meaning  of  what  was  called  a  good  or  meritorious 
consideration  under  the  statute  of  uses.^ 

§  107.  In  analogy  to  this  doctrine,  under  the  statute  of  uses 
it  has  been  urged  that  a  voluntary  post-nuptial  settlement  in 
favor  of  a  wife  or  child,  executory  in  all  its  aspects,  would  be 
enforced  in  favor  of  such  wife  or  child  on  the  ground  of  a  good 
or  meritorious  consideration  for  such  settlement.^    And  in  Ellis 

1  Phill.  342;  Bycroft  v.  Christy,  3  Beav.  238;  Godsall  v.  Webb,  2  Keen, 
99;  McFadden  v.  Jenkyns,  1  Phill.  153;  Bridge  v.  Bridge,  16  Beav.  315; 
Cecil  V.  Butcher,  2  J.  &  W.  573.    [Su-pra  §§  82,  96  and  notes.) 

I  Sand.  Uses,  96-101;  2  Black.  Com.  338. 

*  Bonham  v.  Newcomb,  2  Vent.  365;  Leech  v.  Leech,  1  Ch.  Cas.  249; 

138 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  108. 

V.  Ximmo,  Sugden,  Lord  Chancellor  of  Ireland,  after  a  most 
exhaustiv^e  examination  of  the  authorities,  decided  that  the 
meritorious  consideration  of  providing  for  a  child  was  suffi- 
cient to  lead  a  court  of  equity  to  enforce  an  executory  contract 
against  the  settlor.^  This  case  met  \\ith  considerable  criticism, 
and  several  cases  were  decided,  more  or  less  in  opposition  to  it.^ 
In  Moore  v.  Crofton,  he  allowed  it  to  be  overruled,  declaring, 
however,  at  the  same  time,  that  he  still  thought  it  decided  upon 
sound  principles  of  equity,^  so  that  now  it  may  be  considered 
as  settled  in  England,  that  an  executory  agreement  founded  on 
a  meritorious  consideration  only  will  not  be  executed  against 
the  settlor  himself.'* 

§  108.  As  to  other  parties  claiming  under  the  settlor,  if  he 
had  sold  the  estate,  or  become  indebted,  the  equity  of  a  wife  or 
child  claiming  as  cestui  que  trust,  on  the  ground  of  a  meritorious 
consideration,  would  not  be  enforced  against  a  purchaser  or 
creditor.^  But  if  the  settlor  subsequently  made  a  voluntary 
settlement,  or  died  without  disposing  of  the  estate  by  some 
act  inter  vivos,  there  were  authorities  that  the  voluntary  cestui 
que  trust  could  enforce  his  equity  as  against  other  volunteers 
under  another  settlement,^  or  against  devisees  or  legatees,^  or 

Fothergill  v.  Fothergill,  Freem.  256;  Sear  v.  Ashwell,  and  Gordon  v.  Gor- 
don, 3  Swanst.  411;  Watts  v.  BuUas,  1  P.  Wma.  60;  Bolton  v.  Bolton,  3 
Sev.  414;  Goring  v.  Nash,  3  Atk.  186;  Darley  v.  Darley,  id.  399;  Hale  v. 
Lamb,  2  Eden,  292;  Evelyn  v.  Templar,  2  Bro.  Ch.  148;  Colman  v.  Sarel, 
1  Ves.  Jr.  50;  3  Bro.  Ch.  12;  Antrobus  v.  Smith,  12  Vea.  39;  Rodgers  v. 
Marshall,  17  Ves.  294:  p:ilison  v.  Ellison,  6  Ves.  656. 

»  Ellis  V.  Nimmo,  Lloyd  &  Goold,  333. 

'  Holloway  v.  Headington,  8  Sim.  324;  Dillon  t'.  Coppin,  4  My.  &  Cr. 
646;  Jeflferys  t-.  Jefferye,  1  Cr.  &  Ph.  138. 

^  Moore  v.  Crofton,  3  Jon.  &  La.  442. 

*  Antrobus  v.  Smith,  12  Ves.  46;  Holloway  v.  Headington,  8  Sim.  325; 
Walrond  v.  Walrond,  1  Johns.  25.  And  see  Phillips  v.  Frye,  14  Allen,  36; 
Wliite  V.  Wliite.  52  N.  Y.  368.    [Price  v.  Pric.-,  14  Beav.  598.1 

*  Bolton  V.  Bolton,  3  Swanst.  414,  note;  Goring  v.  Nash,  3  .A.tk.  186; 
Finch  V.  Winchelsea,  1  P.  Wms.  277;  Garrard  ;;.  Lauderdale,  2  R.  &  M. 
154,  453.  But  see  Mackay  v.  Douglass,  L.  R.  14  Eq.  106;  Perry  Herrick 
V.  Attwood,  2  De  G.,  &  J.  39;  Beal  v.  Warren,  2  Gray,  447. 

*  Bolton  t".  Bolton,  3  Swanst.  414.  '  Ibid. 

139 


§  108.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

against  the  heir-at-law  or  next  of  kin.^  There  was,  however,  this 
condition,  that  the  persons  against  whom  the  settlement  was 
sought  to  be  enforced  could  not  also  plead  a  meritorious  con- 
sideration ;  for  if  they  also  were  children  of  the  settlor,  the  con- 
siderations would  be  equal.  In  such  cases  the  court  referred  it 
to  a  master  to  report  whether  they  had  an  adequate  provision 
independent  of  the  estate.^  But  at  the  present  day  in  Eng- 
land it  would  appear  that  even  as  against  volunteers  claiming 
under  the  settlor,  with  or  without  an  adequate  provision,  a  vol- 
untary executory  agreement,  whether  under  seal  or  not,  can- 
not be  enforced  on  the  mere  ground  of  a  meritorious  con- 
sideration.^ 

'  Watts  V.  Bulks,  1  P.  Wms.  60;  Goring  v.  Nash,  3  Atk.  186;  Rodgers 
V.  Marshall,  17  Ves.  294. 

2  Goring  V.  Nash,  3  Atk.  186;  Rodgers  v.  Marshall,  17  Ves.  294. 

'  Price  V.  Price,  14  Beav.  598;  Colman  v.  Sarel,  1  Ves.  Jr.  50;  Jefferys 
V.  Jefferys,  1  Cr.  &  Ph.  138;  Antrobus  v.  Smith,  12  Ves.  39;  Evelyn  w.  Templar, 
2  Bro.  Ch.  148;  Hollo  way  v.  Headington,  8  Sm.  334;  Joyce  v.  Hutton,  11 
Jr.  Ch.  123;  Moore  v.  Crofton,  3  Jon.  &  La.  442. 

Mr.  Lewin  (p.  95  of  his  3d  ed.)  has  discussed  this  whole  matter  with 
a  fulness  that  leaves  little  to  be  said.  He  says:  "It  has  also  been  supposed 
that  where  the  trust  is  imperfectly  created,  the  court,  without  proof  of 
valuable  consideration,  will  act  upon  a  meritorious  consideration,  as  the 
payment  of  debts  or  provision  for  wife  or  child.  The  covenant  to  stand 
seized  to  uses,  and  the  jurisdiction  of  the  court  in  supplying  surrenders 
and  aiding  the  defective  execution  of  powers,  have  generally  been  referred 
to  as  estabhshing  or  at  least  countenancing  this  doctrine. 

"As  regards  the  covenant  to  stand  seized  to  uses,  it  is  evident  that 
mere  meritorious  consideration  was  not  a  sufficient  ground  to  attract  the 
jurisdiction  of  the  court;  for  no  use  would  have  arisen  in  favor  of  a  wife 
or  child  unless  there  had  been  a  covenant.  'There  are  several  ways  in  the 
law,'  said  Lord  Justice  Holt,  'for  declaring  uses,  whether  upon  transmu- 
tation of  the  possession  or  not.  If  a  use  be  declared  upon  a  transmutation 
of  the  possession,  as  in  a  fine  of  feoffment,  it  is  sufficient  for  the  party 
on  the  transmutation  to  declare  that  the  use  shall  be  to  such  a  partj^  of 
such  an  estate;  but  if  the  use  arise  without  transmutation  of  the  possession, 
the  use  then  does  not  arise  by  virtue  of  any  declaration  or  appointment, 
but  there  must  be  some  precedent  obligation  to  oblige  the  party  declaring 
the  use,  which  must  be  founded  on  some  consideration;  for  a  use,  having 
its  foundation  generally  on  grounds  of  equity,  could  not  be  relieved  in 
chancery  without  transmutation  of  possession,  or  an  agreement  founded 
on  a  consideration;  and  therefore  if  bargain  and  sale  were  made  of  a  man's 

140 


CHAP.  III.]  VOLUNTARY   SETTLEMENTS.  [§  109. 

§  109.  The  tendency  in  the  United  States  is  to  sustain  and 
carry  into  eftect  an  executory  trust  in  favor  of  a  wife  or  child 

lands,  on  the  payment  of  the  money,  the  use  could  have  arisen  without 
deed  by  parol;  but  if  the  use  was  in  consideration  of  blood,  then  it  could  not 
arise  by  parol  agreement  without  a  deed,  because  that  agreement  was  not  an 
obliging  agreement:  it  wanted  a  consideration,  aiui  therefore  to  make  it  an 
obliging  agreement,  there  was  necessity  of  a  deed.'  Jones  v.  Morley,  12  Mod. 
161. 

"Thus,  if  equity  be  governed  by  the  strict  analogy  of  uses,  the  court 
cannot  act  upon  meritorious  consideration  where  the  contract  is  by  parol; 
and  though,  where  the  agreement  is  under  seal,  the  argument  of  analogs- 
applies,  yet  it  follows  not  that  equity  will  now  raise  a  trust  because  for- 
merly it  would  have  created  a  use.  A  bargain  and  sale  for  5s.  consider- 
ation still  operates  by  way  of  comveyance  to  transfer  the  estate;  but  should 
the  bargain  and  sale  be  void,  as  such  for  want  of  an  indenture  or  an  inden- 
ture duly  enrolled,  it  could  not  be  argued  that  the  agreement  at  the  present 
day  would  be  specifically  executed  upon  the  basis  of  a  trust.  It  may 
further  be  remarked  that  if  the  covenant  to  stand  seized  to  uses  were  now 
to  regulate  the  administration  of  trusts,  there  would  still  be  no  ground 
for  extending  the  relief  to  creditors,  who,  however,  it  is  admitted  on  all 
hands,  are  equally  entitled  to  the  benefit  of  meritorious  consideration. 
And  the  covenant  to  stand  seized  to  uses  extended,  we  must  remember, 
not  only  to  wife  and  child,  but  also  to  brothers,  nephews,  and  cousins;  but 
no  one  at  the  present  day  would  think  of  admitting  the  same  latitude  in 
the  execution  of  a  trust. 

"With  respect  to  the  jurisdiction  of  the  court  in  supplying  surrenders 
of  copyholds,  the  principle  upon  which  the  relief  is  founded  appears  to  bo 
this,  that  as  the  heir  was  never  meant  by  the  law  to  take  otherwise  than 
in  default  of  the  ancestor's  will,  if  the  ancestor  manifests  any  intention 
in  favor  af  a  meritorious  object,  the  court  will  not  suffer  the  mere  want 
of  form  to  carry  a  benefit  to  the  representative.  'I  have  looked,'  said 
Lord  Alvanley,  'at  all  the  cases  I  can  find  upon  what  principle  this  court 
goes  in  supplying  the  defect.  It  is  this:  whenever  a  man  having  power  over 
an  estate,  whether  ownership  or  not,  in  discharge  of  moral  or  natural  obli- 
gation, shows  an  intention  to  execute  such  power,  the  court  will  operate 
upon  the  conscience  of  the  heir  to  make  him  perfect  this  intention.  This 
is  not  to  be  confounded  with  the  case  of  the  heirs  being  disinherited  bj-  a 
will  of  freeholds  not  duly  executed:  there  is  no  will  at  all.  The  court  cannot 
see  that  there  is  such  an  instrument  ;  but  whenever  there  is  such  a  power, 
it  has  been  executed.'  Chapman  v.  Gibson,  3  Bro.  Ch,  230.  And  see  Ellis  r. 
Nimmo,  Lloyd  &  Goold,  341. 

"The  ground  upon  which  the  courts  aid  the  defective  execution  of  powers 
will  be  found  upon  examination  to  be  precisely  that  upon  which  it  sup- 
plies the  surrender  of  copyholds.  The  power  to  the  extent  to  which  it 
may  be  exercised  is  regarded  in  equity  as  part  of  the  dominion  —  as  a 

141 


§  109.]  EXPRESS    TRUSTS,    ETC.  [CHAP.    III. 

founded  upon  a  meritorious  consideration,  if  the  instrument 
is  under  seal,^  (a)  though  the  rule  is  not  fully  established,  and 

portion  of  the  actual  estate ;  and  the  donee  of  it  is  pro  tanto  the  bona  fide 
owner  of  the  property,  and  the  person  taking  in  default  of  the  donee's 
disposition  is  a  quasi  heir.  Holmes  v.  Coghill,  12  Ves.  213;  Coventry  v. 
Coventry,  at  the  end  of  Francis's  Ma:iims  in  Equity.  The  only  distinc- 
tion between  an  actual  heir  and  the  person  taking  in  default  of  the  power 
is  this;  that  the  former  is  so  constituted  by  course  of  law,  while  the  latter 
is  a  quasi  heir  specially  appointed  by  the  settlor.  Thus  in  aiding  the  de- 
fective execution  of  powers  the  court  says,  as  in  supplying  surrenders,  tlie 
donee  of  the  power,  who  is  the  owner  of  the  property  to  the  extent  of  that 
power,  has  indicated  an  intention  of  providing  for  a  meritorious  object, 
and  the  person  taking  in  default  of  the  power,  who  is  a  kind  of  heir,  shall 
not,  through  want  of  form,  run  away  with  the  estate  from  those  who  are 
much  better  entitled. 

"It  is  clear  that  an  agreement  founded  on  meritorious  consideration 
will  not  be  executed  as  against  the  settlor  himself.  Antrobus  v.  Smith, 
12  Ves.  39.  Indeed,  reUef  in  such  a  case  would  offend  against  the  security 
of  property;  for  if  a  man  improvidently  bind  himself  by  a  complete  ahena- 
tion,  the  court  will  not  unloose  the  fetters  he  hath  put  upon  himself,  but 
he  must  lie  down  under  his  own  folly.  Villers  v.  Beaumont,  1  Vem.  101; 
but  if  the  court  interpose  where  the  act  is  left  incomplete,  what  is  it  but 
to  wrest  property  from  a  person  who  has  not  legally  parted  with  it?  An- 
other observation  that  suggests  itself  is,  that  during  the  life  of  the  settlor 
the  ground  of  the  meritorious  consideration  scarcely  seems  to  apply;  for 
can  it  be  thought  to  be  the  duty  of  a  husband  to  endow  his  wife,  during 
the  coverture  with  a  separate  and  independent  provision?  or  is  a  parent 
bound  by  any  natural  or  moral  obligation  to  impoverish  himself  (for  such 
a  case  may  be  supposed)  for  the  purpose  of  enriching  a  child?  or  has  a 
court  of  equity  the  jurisdiction  to  appropriate  a  specific  fund  to  creditors, 
when  the  debtor  is  still  living?  the  presumption  of  law  is  that  the  creditor 
can  obtain  satisfaction  of  his  debt  by  the  usual  legal  process.  It  is  after 
the  decease  of  the  settlor  that  meritorious  consideration  becomes  such  a 
powerful  plea  in  a  court  of  equity.  The  wife  and  children  have  then  lost 
the  personal  support  of  the  husband  and  parent,  and  who  can  have  a  juster 
claim  to  the  inheritance  of  the  property?  The  creditor  is  then  barred,  by 
Act  of  God,  of  his  remedy  against  the  debtor;  and  should  the  assets  prove 
insufficient,  how  but  by  the  assistance  of  equity  can  he  hope  to  be  satisfied 


'  Stone  V.  Stone,  L.  R.  5  Ch.  74;  Shepherd  v.  Bevin,  4  Md.  Ch.  133; 
9  Gill,  32;  Harris  v.  Haines,  6  Md.  435;  Mclntire  v.  Hughes,  4  Bibb,  186; 

(a)  In  Kentucky  and  New  Jersey      trine  that  equity  will  complete  an 
the  cases  seem  to  support  the  doc-      incomplete   gift  or  trust  as  against 
142 


CHAP.  III.j  VOLUNTARY    SETTLEMENTS.  (§   109. 

perhaps,  upon  thorough  consideration,  would  not  be  acted  upon. 
But  the  rule  would  be  strictly  confined  to  a  wife  and  child,  and 

in  his  demand?  Another  objection  to  the  execution  of  a  voluntarj-  con- 
tract against  the  settlor  himself,  at  least  in  respect  of  land,  is  the  principle 
expressed  by  Lord  Cowper,  that  equity,  like  nature,  will  do  notliing  in 
vain.  Seeley  v.  Jago,  1  P.  VVms.  369;  Billingham  v.  Lawthen,  1  Ch.  Cas. 
243;  Pulvertoft  v.  Pulvertoft,  18  Ves.  99;  as  if  money  be  directed  to  be 
converted  into  land,  or  land  into  money,  the  devisee  or  legatee  may  elect 
to  take  the  property  in  the  original  state,  for  should  the  court  direct  an 
actual  conversion,  the  devisee  or  legatee  might  immediately  annul  the 
order  by  resorting  to  a  reconversion;  and  so,  should  the  court  decree  a 
specific  performance  of  a  contract  regarding  realty  for  meritorious  con- 
sideration, the  property  the  next  moment  might  be  disposed  of  to  a  bona 
Jidc  purchaser,  and  the  settlement  become  nugatory.  Again,  if  the  imper- 
fect gift  can  be  enforced  against  the  settlor  himself,  then  the  equitable 
right  must  form  a  lien  upon  the  property;  and  upon  the  death  of  the  set- 
tlor his  heir  would,  in  all  events,  be  bound  to  convey:  but  even  in  aiding 
the  defective  execution  of  powers  and  supplying  surrenders  of  copyholds,  a 
previous  inquiry  by  the  master  is  invariably  directed  whether  the  heir  of 
the  settlor  has  any  other  adequate  provision." 


Mahan  v.  Mahan,  7  B.  Mon.  579;  Bright  v.  Bright,  8  id.  194;  [Ford  v.  Elling- 
wood,  3  Met.  (Ky.)  359]  ;  Dennison  v.  Goehring,  7  Barr,  175;  Hayes  v. 
Kershaw,  1  Sand.  258;  Taylor  v.  James,  4  Des.  5;  Caldwell  v.  Williams,  1 
Bailey  Eq.  175;  Gamer  v.  Gamer,  1  Busb.  Eq.  1;  Jones  v.  Obenchain,  10 
Grat.  259;  Harvey  v.  Alexander,  1  Rand.  219;  Blackley  r.  Holton,  5  Dana, 
520;  2  Spence,  Eq.  Jur.  58:  Pennington  v.  Gitting,  2  Gill  &  J.  208;  Tolar 
V.  Tolar,  Dev.  Ch.  451;  Thompson  v.  Thompson,  2  How.  (Miss.)  737;  Wood- 
son 1-.  McClelland,  4  Mo.  495.  But  see  Taylor  v.  Taylor,  2  Humph.  597; 
Martin  v.  Ramsey,  5  Humph.  349;  Campbell's  Estate,  7  Barr,  101 ;  Kennedy 
V.  Ware,  1  Barr,  445;  Cressman's  App.  42  Penn.  St.  155;  Bunn  v.  Winthrop, 
1  Johns.  Ch.  329.  The  above  cases  of  Mclntire  v.  Hughes,  Mahan  v.  Mahan, 
and  Bright  v.  Bright,  are  direct  decisions  upon  the  point,  and  fully  estabUsh 
the  rule  for  the  State  of  Kentucky,  while  the  cases  of  Bunn  v.  Winthrop, 
Dennison  v.  Goehring,  Jones  v.  Obenchain,  and  most  of  the  other  cases,  pre- 
sented a  completely  executed  trust  for  enforcement,  and  the  court  was  not 
called  upon  to  decide  whether  a  meritorious  consideration  alone  would 
support  an  executory  trust.  In  Hayes  v.  Kershaw,  the  settlement  was 
for  a  collateral  relative,  and  the  Vice-Chancellor  declined  to  support  it,  but 
intimated  in  strong  language  that  an  executory  tnist  for  a  wife!  or  child 
would  be  supported  upon  meritorious  consideration  merely.  The  cases 
are  very  fully  commented  upon  by  the  learned  editors  to  1  Lead.  Cas.  in 

the  executor  or  collateral  heirs  of  upon  the  ground  of  meritorious 
the  donor  in  favor  of  a  wife  or  child,      consideration.    Ky.  cases  cited  su- 

143 


§  110.] 


EXPRESS    TRUSTS,    ETC. 


[chap.    III. 


would  not  be  extended  to  brothers,  sisters,  nephews,  or  parents,^ 
and  probably  not  to  grandchildren,^  nor  to  illegitimate  children.^ 

§  110.  Marriage  is  a  valuable  consideration,  therefore  exec- 
utory agreements,  made  in  contemplation  of  marriage,  will  be 
enforced  if  the  marriage  actually  takes  place.^ 

Eq.  330-333,  with  a  strong  leaning  to  the  opinion  that  voluntary  execu- 
tory trusts  for  a  wife  or  cMld  would  be  supported.  The  learned  editors 
also  express  strong  doubts  whether  the  case  of  Ellis  v.  Nimnao,  1  Lloyd  & 
Goold,  333,  is  overruled  by  the  cases  which  are  usually  thought  to  overrule 
it;  and  their  criticism  is  ingenious  and  acute.  They  do  not,  however, 
advert  to  the  case  of  Moore  v.  Crofton,  3  Jon.  &  La.  442.  See  Cox  v.  Sprigg, 
6  Md.  274. 

1  Downing  v.  Townsend,  Amb.  592;  Buford's  Heirs  v.  M'Kee,  1  Dana, 
107;  Hayes  v.  Kershaw,  1  Sand.  Ch.  258.  [Cotton  v.  Graham,  84  Ky.  672; 
Landon  v.  Hutton,  50  N.  J.  Eq.  500.] 

«   Buford's  Heirs  r;.  M'Kee,  1  Dana,  107. 

'  Fursaker  v.  Robinson,  Pr.  Ch.  475;  but  see  Bunn  v.  Winthrop,  1  Johns. 
Ch.  329. 

*  Duval  V.  Getting,  Gill,  38;  Gough  v.  Crane,  3  Md.  Ch.  119;  Crane 


pro;  Conover  v.  Brown,  49  N.  J. 
Eq.  156,  172.  See  also  M.  E. 
Church  V.  Town,  47  N.  J.  Eq.  400, 
406.  And  in  several  other  States  it 
seems  to  be  established  that  equity 
will  in  some  cases  give  effect  to  a 
deed  of  a  husband  directly  to  his 
wife  without  valuable  consideration, 
when  the  only  objection  to  it  is 
the  technical  rule  of  law  that  a  hus- 
band cannot  convey  directly  to  his 
wife.  Gamer  v.  Garner,  1  Busb.  Eq. 
(N.  C.)  1;  Jones  v.  Obenchain,  10 
Gratt.  (Va.)  259;  Sayers  v.  Wall, 
26  Gratt.  (Va.)  354;  Sims  v.  Rickets, 
35  Ind.  181;  Stark  v.  Kirchgraber, 
186  Mo.  633;  Carter  ?;.  McNeal,  86 
Ark.  150.  See  Keffer  v.  Grayson, 
76  Va.  517,  523.  Apart  from  these 
cases  there  is  little,  if  any,  real 
authority  in  the  United  States  for 
the  doctrine  that  equity  will  en- 
force against  a  donor  or  his  heirs 
or  personal  representatives  an  exec- 
144 


utory  contract  or  a  trust  imperfectly 
created,  or  give  effect  to  an  incom- 
plete gift,  where  the  only  con- 
sideration is  meritorious.  On  the 
other  hand  there  is  considerable 
authority  directly  against  the  prop- 
osition. Matter  of  James,  146  N.  Y. 
78,  92;  Whitaker  v.  Whitaker,  52 
N.  Y.  368;  Matter  of  Wilbur  v. 
Warren,  104  N.  Y.  192,  196;  Young 
V.  Young,  80  N.  Y.  422,  437.  See 
also  Phillips  v.  Frye,  14  Allen,  36; 
Henderson's  Adm'r  v.  Henderson, 
21  Mo.  379;  Gwynn  v.  Gwynn,  11 
App.  D.  C.  564,  574.  Note  to 
Ellison  V.  EUison,  1  White  &  Tudor's 
Leading  Cases  in  Equity  (6th  Am. 
ed.),  327. 

For  cases  of  attempted  but  in- 
effectual gifts  of  the  donor's  note, 
check  or  other  promise  to  pay,  see 
Sanborn  v.  Sanborn,  65  N.  H.  172; 
Graves  v.  Safford,  41  111.  App.  659; 
Pennell  v.  Ennis,  126  Mo.  App.  355. 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§   111. 

§  111.  A  contract  under  seal  imports  a  cojisideration,  and 
an  action  at  law  can  be  maintained  upon  such  a  contract.  And 
it  has  sometimes  been  supposed  that  a  court  of  equity  would 
enforce  a  contract  in  favor  of  a  volunteer  whenever  an  action 
of  law  could  be  sustained  upon  the  instrument.'  But  equity 
never  enforced  a  voluntary  covenant,  though  under  seal,  to  stand 
seized  to  the  uses  of  a  stranger;  and  it  is  now  settled,  in  Eng- 
land, that  equity  will  not  enforce  a  voluntary  contract,  although 
under  seal.^  Equity  will  not  decree  the  specific  performance  of 
a  contract,  where  a  court  of  law  would  give  only  nominal  dam- 
ages. In  the  United  States,  however,  considerable  stress  is  laid 
upon  the  solemnity  of  a  seal.  The  courts  say  that  they  will  not 
execute  a  voluntary  executory  agreement  unless  it  is  under  seal,' 
thereby  implying  that  an  executory  contract  under  seal  will 
be  enforced,  though  voluntary.  And  in  Kentucky,  where  the 
distinction  between  sealed  and  unsealed  instruments  is  now 
abolished,  a  voluntary  executory  contract  not  under  seal  has 
been  upheld.'*  But  there  is  the  same  uncertainty  whether  a 
seal  would  render  a  voluntary  executory  contract  binding  in 
equity,  as  there  is  whether  a  mere  meritorious  consideration 
will  enable  the  court  to  enforce  the  settlement.  Generally,  in 
America,  very  little  regard  is  paid  to  mere  formalities,  and  a  seal 
is  regarded  in  most  States  as  a  mere  formality.    A  mere  scratch 

V.  Gough,  4  id.  316;  Hale  v.  Lamb,  2  Eden,  271;  Stone  v.  Stone,  L.  R.  5 
Ch.  74.  [Ransdel  v.  Moore,  153  Ind.  393,  404;  Whitehouse  v.  Whitehouse, 
90  Me.  468;  Gevers  v.  Wright's  Ex'rs,  18  N.  J.  Eq.  330.  As  to  the  enforce- 
ment of  antenuptial  settlements,  see  infra  §  122,  note.) 

'  Beard  v.  Nutthall,  1  Vcrn.  427;  Williamson  v.  Coddrington,  1  Ves. 
511;  Hervey  v.  Audland,  14  Sim.  531;  Husband  v.  Pollard  and  Randal  v. 
Randal,  2  P.  Wms.  467;  Vernon  v.  Vernon,  id.  594;  Goring  v.  Nash,  3 
Atk.  186;  Stephens  v.  Trueman,  1  Ves.  73;  Wiseman  v.  Roper,  1  Ch.  R.  158. 

2  Hale  V.  Lamb,  2  Eden,  294;  Fursaker  v.  Robinson,  Pr.  Ch.  475;  Evelyn 
V.  Templar,  2  Bro.  Ch.  148;  Colman  v.  Sarel,  3  id.  12;  Jeffer>'8  v.  Jefferj-s, 
1  Cr.  &  Ph.  138;  Meek  v.  Kettlewell,  1  Hare,  464;  Fletcher  v.  Fletcher, 
4  id.  74;  Newton  v.  Askew,  11  Beav.  145;  Dillon  v.  Coppin,  4  M. »!(:  Cr.  647; 
Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  188;  Dening  v.  Ware,  22  Beav.  184. 

^  Kennedy  v.  Ware,  1  Barr,  445;  Caldwell  r.  Williams,  1  Bailey,  Eq. 
175;  Dennison  v.  Goehring,  7  Barr,  175;  Mclntire  v.  Hughes,  4  Bibb,  186. 

*  Mahan  v.  Mahan,  7  B.  Mon.  579. 

VOL.  I.  —  10  145 


§  111  a.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

or  scroll  of  the  pen  passes  for  a  seal,  and  in  some  States  seals  are 
abolished  altogether.  Why  any  effect  should  be  given  to  a  form 
that  has  ceased  to  be  a  solemnity  would  be  hard  to  explain  on 
principle,  and  is  equally  uncertain  upon  the  authorities. 

Ill  a.  By  the  construction  given  to  the  New  York  stat- 
utes a  trust  to  sell  land  for  the  benefit  of  creditors  and  legatees 
must  be  absolute  and  imperative  without  discretion  in  the 
trustee;  and  a  trust  to  receive  rents  and  profits  is  not  valid  if 
there  is  no  direction  to  apply  them  to  the  use  of  any  person  or 
for  any  period.* 

»  Ck)oke  V.  Piatt,  98  N.  Y.  38,  39. 


146 


CHAP.  IV.]  IMPLIED    TRUSTS.  [§  112. 


CHAPTER  IV. 

IMPLIED     TRUSTS. 

§  112.     The  manner  in  which  trusts  are  implied,  and  the  words  from 

which  they  are  imphed. 
§  113.     Words  from  which  a  trust  will  not  be  imphed. 
§§  114-116.     Rules  by  which  trusts  will  or  will  not  be  implied. 
§§  117-118.     Implied  trusts  from    directions  as  to  the  maintenance  of 
children  or  others. 
§  119.     WTien  trusts  for  maintenance  are  not  imphed. 
§  120.      Rules  that  govern  implied  trusts.' 

§  121.     Trusts  arising  by  implication  from  the  provisions  of  a  will. 
§  122.     Imphed  trusts  arising  from  contracts. 

§  123.     A  direction  to  employ  certain  persons  does  not  raise  an  implied 
trust. 

§  112.  Implied  trusts  are  those  that  arise  when  trusts  are 
not  directly  or  expressly  declared  in  terms,  but  the  courts,  from 
the  whole  transaction  and  the  words  used,  imply  or  infer  that  it 
was  the  intention  of  the  parties  to  create  a  trust. ^  (a)  Courts 
seek  for  the  intention  of  the  parties,  however  informal  or  ob- 
scure the  language  may  be;  and  if  a  trust  can  fairly  be  implied 
from  the  language  used  as  the  intention  of  the  parties,  the  in- 

*  Lane  v.  Lane,  8  Allen,  350. 

(a)  In  Gorrell  v.  Alspaugh,   120  tinguished  both  from  resulting  and 

N.  C.  362,  366,  Douglass,  J.,  said:  constructive    trusts;    but    this   dis- 

"  Implied  trusts  are  either  resulting  tinction  does  not  seem  to  be  recog- 

or  constructive.     In  this  State  all  nized  in  this  State,  nor,  indeed,  in 

implied    trusts    are    generally    de-  the  Statute  of  Frauds  (29  Charles 

nominated    parol    trusts,    referring  II.,  ch.  3,  §  8),  which  refers  to  a 

to  their  origin  and  nature  of  proof  trust  'arising  or  resulting  by  impli- 

rather  than  their  incidents  and  re-  cation    or    construction    of    law.'" 

suits.    Some  eminent  authorities,  aa  See    also    Verzier    v.    Convard,    75 

Lewin  and  Perry,  make  a  separate  Conn.   1. 
division   of   imphed    trusts   aa   dis- 

147 


§  112.]  IMPLIED   TRUSTS.  [CHAP.    IV. 

tention  will  be  executed  through  the  medium  of  a  trust.  ImpHed 
trusts  may  arise  out  of  agreements  and  settlements  inter  vivos  ^ 
where  there  is  a  sufficient  consideration;  but  they  more  fre- 
quently arise  from  the  construction  of  wills  where  a  consider- 
ation is  implied.  In  Pennsylvania,  such  words  as  "my  wish  is," 
"my  further  request  is,"  or  others  merely  expressive  of  a  de- 
sire, recommendation,  or  confidence,  are  not  sufficient  to  con- 
vert a  devise  or  bequest  into  a  trust.-  But  the  general  rule  is 
that  if  a  testator  make  an  absolute  gift  to  one  person  in  his 
will,  and  accompany  the  gift  with  words  expressing  a  "belief,"  ^ 
"desire,"^  "will,"^  "request," «  "will  and  desire;""^  or,  if  he 
"will  and  declare,"  ^  "wish  and  request,"  ^  "wish  and  desire,"  ^^ 
"entreat,"  ^^  "most  heartily  beseech,"  ^  "order  and  direct,"  ^'(a) 


1  Liddard  v.  Liddard,  28  Beav.  266. 

2  Hopkins  v.  Glunt,  111  Penn.  St.  287;  Bowlby  v.  Thunder,  105  id. 
178;  Colton  V.  Colton,  10  Sawyer,  325. 

=■  Gary  v.  Gary,  2  Sch.  &  Le.  189;  Paul  v.  Gompton,  8  Ves.  380. 

*  Harding  v.  Glyn,  1  Atk.  469;  Mason  v.  Limbury,  and  Vernon  v.  Vernon, 
Amb.  4;  Trot  v.  Vernon,  8  Vin.  Abr.  72;  Pushman  v.  Filliter,  3  Ves.  7; 
Brest  V.  Offley,  1  Gh.  R.  246;  Bonser  v.  Kinnear,  2  Gif.  195;  Gruwys  v. 
Golman,  9  Ves.  319;  Shaw  v.  Lawless,  Lloyd  &  Goold,  154;  5  Gl.  &  Fin.  129; 
Lloyd  &  Goold,  Tern.  Plunket,  559. 

*  Bales  V.  England,  Pr.  Gh.  200;  Glowdsley  v.  Pelham,  1  Vem.  411. 
«  Pierson  v.  Garnet,  2  Bro.  Gh.  38,  226;  Bade  v.  Eade,  5  Mad.  118; 

Moriarty  v.  Martin,  3  Ir.  Gh.  26;  Bernard  v.  Minshidl,  1  Johns.  276;  Knox 
V.  Knox,  59  Wis.  172. 

'  Birch  V.  Wade,  3  Ves.  &  B.  198;  Forbes  v.  Ball,  3  Mer.  437. 
«  Gray  i^.  Gray,  11  Ir.  Gh.  218. 

«  Foley  V.  Parry,  5  Sim.  139;  2  M.  &  K.  138;  Cook  v.  EUington,  6  Jones, 
Eq.  371. 

'"  Liddard  v.  Liddard,  28  Beav.  266;  Gockrill  v.  Armstrong,  31  Ark.  580. 
"  Prevost  V.  Glark,  2  Mad.  458;  Meredith  v.  Heneage,  1  Sim.  543;  Taylor 
V.  George,  2  Ves.  &  B.  378. 

^  Meredith  v.  Heneage,  1  Sim.  553. 

"  Gary  v.  Gary,  2  Sch.  &  Le.  189;  White  v.  Briggs,  2  PhiU.  583. 

(a)  Such  words  as  "order"  and  tion,    by   a   later   clause   in   a   will 

"direct"  are  now  treated  as  prima  which  contains  them.    See  Gollister 

facie  mandatory;  they  are  impera-  v.  Fassitt,  163  N.  Y.  281.     But  see 

tive  words,  even  when  a  discretion  Boyle  v.   Boyle,    152   Pa.   St.    108; 

is  given,  as  to  the  mode  of  execu-  Good  v.  Fichthom,  144  Pa.  St.  287. 

148 


CHAP.  IV.]  PRECATORY    WORDS.  [§  112. 

"authorize  and  empower,"^  "recommend,"^  "hope,"'  "do 
not  doubt,"  ^  "be  well  assured,"  '"  "confide,"  ^  "have  the  fullest 
confidence,"  ^  "trust  and  confide,"  ^  "have  full  assurance  and 
confident  hope;  "  ^  or,  if  he  make  the  gift  "under  the  firm  con- 
viction," ^°  or  "well  knowing;""  or,  if  he  use  the  expression, 
"of  course  the  legatee  will  give,"  ^^  or,  "in  consideration  that 
the  legatee  has  promised  to  give,"  ^^  —  in  these  and  similar 
cases  courts  will  consider  the  intention  of  the  testator  as  mani- 
festly implied,  and  they  will  carry  the  intention  into  effect  by 
declaring  the  donee  or  first  taker  to  be  a  trustee  for  those  whom 
the  donor  intended  to  benefit."  (a)     And  so  the  words,  "it  is 

1  Brown  v.  Higgs,  4  Ves.  708;  5  id.  495;  8  id.  561;  18  id.  192. 

*  Tibbits  V.  Tibbits,  Jac.  317;  19  Ves.  65G;  Horwood  v.  West,  1  Sim. 
«S:  St.  387;  Paul  v.  Compton,  8  Ves.  380;  Malim  v.  Keighley,  2  Ves.  Jr. 
333,  529;  Malim  v.  Barker,  3  Ves.  150;  Meredith  v.  Heneage,  1  Sim.  543; 
Kingston  v.  Lorton,  2  Hog.  166;  Cholmondeley  v.  Cholmondeley,  14  Sim. 
590;  Hart  v.  Tribe,  18  Beav.  215;  Meggison  v.  Moore,  2  Ves.  Jr.  630; 
Sale  V.  Moore,  1  Sim.  534;  Ex  parte  Payne,  2  Y.  &  Coll.  636;  Randal  v. 
Hearle,  1  Anst.  124;  Lefroy  v.  Flood,  4  Ir.  Ch.  1;  Cunliffe  v.  Cunliffe,  Amb. 
686;  distinguished  in  Pierson  v.  Garnet,  2  Bro.  Ch.  46;  Malim  v.  Keighley, 
2  Ves.  Jr.  333;  Pushman  v.  Filliter,  3  Ves.  7;  Webster  v.  Morris,  66  Wis.  366. 

'  Harland  v.  Trigg,  1  Bro.  Ch.  142;  Paul  v.  Compton,  8  Ves.  380. 

*  Parsons  ;;.  Baker,  18  Ves.  476;  Taylor  v.  George,  2  Ves.  &  B.  378; 
Malone  v.  O'Connor,  Lloyd  &  Goold,  465;  Sale  v.  Moore,  1  Sim.  534. 

*  Macey  v.  Shurmer,  1  Atk.  389;  Anst.  520;  Ray  v.  Adams,  3  M.  &  K. 
237. 

*  Griffiths  V.  Evans,  5  Beav.  241 ;  Shepherd  v.  Nottidge,  2  J.  &  H.  766. 
'  Shovelton  v.  Shovelton,  32  Beav.   143;  Wright  v.  Atkj-ns,   17  Ves. 

255;  19  id.  299;  G.  Cooper,  111;  T.  &  R.  143;  Webb  v.  Wools,  2  Sim.  (n.  s.) 
267;  Palmer  v.  Simmonds,  2  Dr.  225;  Warner  v.  Bates,  98  Mass.  274. 

*  Wood  V.  Cox,  1  Keen,  317;  2  My.  &  Cr.  684;  Pilkington  v.  Boughey, 
12  Sim.  114. 

*  McNab  V.  Whitbread,  17  Beav.  299. 

••  Barnes  v.  Grant,  2  Jur.  (n.  s.)  1127;  26  L.  J.  Ch.  92. 
"  Bardswell  v.  Bardswell,  9  Sim.  319;  Nowland  v.  Nelligan,  1  Bro.  Ch. 
489;  Briggs  v.  Penny,  3  Mac.  &  G.  546;  3  De  G.  &  Sm.  525. 

12  Robinson  v.  Smith,  6  Madd.  124;  Lechmere  v.  Lavie,  2  M.  &.  K.  197. 

"  Clifton  V.  Lombe,  Amb.  519. 

"  Warner  v.  Bates,  98  Mass.  276;  Lambe  v.  Eames,  L.  R.  10  Eq.  267. 

(a)  The  tendency  shown  in  the  words  of  request  or  recommendation 
more  recent  decisions  is  to  give  addressed  to  a  legatee  or  devisee, 
much  less  force  than  formerly  to      Sale   i-.    Thomberry,    86    Ky.   266; 

149 


§  112.] 


IMPLIED    TRUSTS. 


[chap.  IV. 


my  wish,"  ^  "it  is  my  wish  and  will,"  ^  "having  confidence, 
"  I  desire  that  the  donee  should  appropriate  $50  per  year. 


>>  3 

>>   4 


'  Brunson  v.  Hunter,  2  Hill  Ch.  490. 

2  McRee's  Adm'r  v.  Means,  34  Ala.  349.  [Summers  v.  Higley,  191  III.  193.J 

'  Dresser  v.  Dresser,  46  Maine,  48;  Reid's  Adm'r  v.  Blackstone,  14  Grat. 


363. 


*  Erickson  v.  Willard,  1  N.  H.  217. 


Eberhardt  v.  Perolin,  49  N.  J .  Eq. 
570;  Street  v.  Gordon,  58  N.  Y.  S. 
8G0,  41  App.  Div.  439;  Colton  v. 
Colton,  127  U.  S.  300,  312;  In  re 
Oldfield,  [1904]  1  Ch.  549;  Mus- 
eoorie  Bank  v.  Raynor,  7  App.  Cas. 
321,  330;  Williams  v.  Williams, 
[1897]  2  Ch.  12;  In  re  Hamilton, 
[1895]  2  Ch.  370;  In  re  Diggles,  39 
Ch.  Div.  253;  In  re  Adams  &  Ken- 
sington Vestry,  27  Ch.  Div.  394, 
406. 

The  whole  question  in  every  case 
is  what  the  testator  intended.  It 
never  was  law  that  such  words 
necessarily  imposed  a  trust,  if  he 
intended  them  to  express  merely 
his  wishes,  hopes  or  recommenda- 
tions, however  clearly,  and  did  not 
himself  intend  that  they  should  be 
mandatory.  The  only  ground  on 
which  precatory  words  could  ever 
have  been  construed  to  create  a 
trust  is  that  the  testator  actually 
intended  them  to  be  mandatory 
upon  the  devisee  or  legatee,  that 
he  used  the  words  to  express  some- 
thing different  from  their  natural 
and  ordinary  meaning:  i.  e.,  as 
polite  forms  of  command  rather 
than  requests.  Lumpkin  v.  Rodgers 
155  Ind.  285;  Major  v.  Herndon, 
78  Ky.  123;  Pratt  v.  Sheppard,  etc.. 
Hospital,  88  Md.  610;  Poor  v.  Brad- 
bury, 196  Mass.  207;  Holmes  v.  Dal- 
ley,  192  Mass.  451;  Aldrich  v.  Al- 
drich,   172  Mass.   101;  Trustees  of 

150 


Hillsdale  CoUege  v.  Wood,  145  Mich. 
257,  263;  Courtenay  v.  Courtenay, 
90  Miss.  181;  Rector  v.  Alcorn,  88 
Miss.  788;  Murphy  v.  Carlin,  113 
Mo.  112;  Post  V.  Moore,  181  N.  Y. 
15,  106  Am.  St.  495  and  note;  Ar- 
nold V.  Arnold,  41  S.  C.  291;  Hill 
V.  Page,  36  S.  W.  735  (Tenn.  1895); 
McDuffie  V.  Montgomery,  128  Fed. 
105;  In  re  Williams,  [1897]  2  Ch.  12. 

As  was  stated  in  Pratt  v.  Shep- 
pard, etc..  Hospital,  88  Md.  610, 
"The  whole  question  is  one  of  the 
interpretation  of  each  particular 
will."  Mitchell  v.  IMitchell,  143 
Ind.  113;  Clay  v.  Wood,  153  N.  Y. 
134. 

If  a  trust  was  intended  by  the 
testator,  the  precatory  words  are 
sufficient  to  create  it.  Hughes  v. 
Fitzgerald,  78  Conn.  4;  Dexter 
V.  Evans,  63  Conn.  58;  Bohon  v. 
Barrett,  79  Ky.  378;  Major  v. 
Herndon,  78  Ky.  123;  McCurdy 
V.  McCallum,  186  Mass.  464; 
Murphy  v.  Carlin,  113  Mo.  112; 
Foster  v.  Willson,  68  N.  H.  241; 
Phillips  V.  Phillips,  112  N.  Y.  197; 
Wolbert  t;.  Beard,  128  Wis.  391, 
397;  Inre  Burley,  [1910]  1  Ch.  215. 

But  there  is  no  rule  of  construc- 
tion which  requires  a  court  to  in- 
terpret precatory  words  occurring  in 
a  will  as  different  in  meaning  from 
such  words  as  ordinarily  used. 
The  fact  that  the  person  using  them 
has   the  right  to  have   his  wiahea 


CHAP.  IV.] 


PRECATORY    WORDS. 


(§  112. 


"to  be  disposed  of  and  divided  among  my  children,"^  "with 
full  confidence  that  they  will  dispose  of  such  residue  among  our 

*  Collins  V.  Carlisle,  7  B.  Mon.  14. 


carried  out  if  he  sees  fit  to  so  direct 
has  influenced  the  courts,  in  many 
cases  doubtless  unduly,  in  the  in- 
terpretation of  words  which  in 
form  merely  state  his  wishes.  The 
modern  tendency,  however,  is  to 
give  to  such  words  only  their  nat- 
ural meaning,  unless  it  appears 
from  other  parts  of  the  will,  or  from 
any  evidence  that  is  proper,  that 
the  testator  intended  them  to  be 
mandatory.  Kauffman  v.  Gries, 
141  Cal.  295;  Estate  of  Marti,  132 
Cal.  666;  Hughes  v.  Fitzgerald,  78 
Conn.  4;  Giles  v.  Anslow,  128  111. 
187;  Mitchell  v.  Mitchell,  143  Ind. 
113;  Bills  V.  Bills,  80  Iowa,  269; 
Wood  V.  Wood,  127  Ky.  514;  White 
V.  Irvine,  74  S.  W.  247  (Ky.  1903); 
Igo  V.  Irvine,  70  S.  W.  836  (Ky. 
1902);  Aldrich  v.  Aldrich,  172  Mass. 
101;  Poor  j;.  Bradbury,  196  Mass. 
207;  Post  V.  Moore,  181  N.  Y.  15, 
106  Am.  St.  495,  note;  Clay  v.  Wood, 
153  N.  Y.  134;  Matter  of  Gardner, 
140  N.  Y.  122;  Foose  v.  Whitmore, 
82  N.  Y.  405;  Boyle  v.  Boyle,  152 
Pa.  St.  108;  Ogden,  Petitioner,  25 
R.  I.  373;  Russell  v.  U.  S.  Trust  Co. 

136  Fed.   758;    Bumes  v.   Bumes, 

137  Fed.  781,  791;  In  re  Oldfield, 
[1904]  1  Ch.  549;  In  re  Hanbury, 
[1904]  1  Ch.  415;  Hill  v.  Hill,  [1897] 
1  Q.  B.  483,  486;  In  re  Conolly, 
[1910]  1  Ch.  219.  See  also  Good  v. 
Fich thorn,  144  Pa.  St.  287;  1  Ames' 
Cases  on  Trusts  (2d  ed.)  97. 

In  Colton  V.  Colton,  127  U.  S. 
300,  312,  Mr.  J.  Matthews  said: 
"If  there  be  a  trust  sufficiently 
expressed  and  capable  of  enforce- 


ment by  a  court  of  equity,  it  does 
not  disparage,  much  less  defeat  it, 
to  call  it  'precatory.'  The  ques- 
tion of  its  existence,  after  all,  de- 
pends upon  the  intention  of  the 
testator  as  expressed  by  the  words 
he  has  used,  according  to  their  nat- 
ural meaning,  modified  only  by  the 
context  and  the  situation  and  cir- 
cumstances of  the  testator  when 
he  used  them.  On  the  one  hand, 
the  words  may  be  merely  those  of 
suggestion,  counsel,  or  advice,  inten- 
ded only  to  influence,  and  not  to 
take  away  the  discretion  of  the 
legatee  growing  out  of  bis  right  to 
use  and  dispose  of  the  property 
given  as  his  own.  On  the  other 
hand,  the  language  employed  may  be 
imperative  in  fact,  though  not  in 
form,  conveying  the  intention  of 
the  testator  in  terms  equivalent  to  a 
command,  and  leaving  to  the  lega- 
tee no  discretion  to  defeat  his  w'ishes, 
although  there  may  be  a  discretion  to 
accomplish  them  by  a  choice  of 
methods,  or  even  to  define  and 
limit  the  extent  of  the  interest  con- 
ferred upon  his  beneficiary."  In 
the  case  of  In  re  Williams,  [1897] 
2  Ch.  12,  18,  Lindley,  L.  J.,  said: 
"In  each  case  the  whole  will  must 
be  looked  at;  and  unless  it  appears 
from  the  whole  will  that  an  obUga- 
tion  was  intended  to  be  imposed,  no 
obligation  will  be  held  to  exist.  .  .  . 
The  term  '  precatory '  only  has  refer- 
ence to  forms  of  expression.  Not 
only  in  wills  but  in  daily  life  an  ex- 
pression may  be  imperative  in  its 
real  meaning  although  couched  in 

151 


§  112.] 


IMPLIED    TRUSTS. 


[chap.    IV. 


brothers    and    sisters    according    to    their    best    discretion,"  ^ 
"  intrusting   to    her   the   education    and    maintenance    of   his 

'  Bull  V.  Bull,  8  Conn.  47. 


language  which  is  not  imperative  in 
form.  A  request  is  often  a  polite 
form  of  command.  ...  A  condi- 
tion of  this  kind  is  enforceable  in 
equity,  and  need  not  amount  to  a 
common-law  condition  involving  a 
forfeiture."  In  Hill  v.  Hill,  [1897]  1 
Q.  B.  483,  486,  Lord  Esher,  M.  R., 
said:  "I  have  the  strongest  convic- 
tion that,  when  the  court  is  called 
upon  to  place  a  construction  upon 
words  spoken  or  written  for  the 
purpose  of  adjudicating  upon  them, 
the  same  rule  applies  in  courts  of 
equity  as  in  courts  of  law,  namely, 
that  the  words  must  have  their  or- 
dinary signification,  unless  in  the 
particular  case  there  is  something 
which  obliges  the  court  to  give  them 
a  meaning  other  than  their  ordinary 
meaning.  The  words  which  we 
have  to  consider  in  tliis  case  are 
words  of  request.  Words  of  request 
in  their  ordinary  meaning  convey  a 
mere  request  and  do  not  convey  a 
legal  obligation  of  any  kind  either 
at  law  or  in  equity.  But  in  any  par- 
ticular case  there  may  be  circum- 
stances which  would  oblige  the 
court  to  say  that  such  words  have 
a  meaning  beyond  their  ordinary 
meaning,  and  import  a  legal  obli- 
gation." Lord  St.  Leonards  in  his 
Law  of  Property,  p.  375,  says:  "It 
is  not  an  unwholesome  rule,  that  if 
a  testator  really  means  his  recom- 
mendation to  be  imperative,  he 
should  express  his  intention  in  a 
mandatory  form;  but  this  conclu- 
sion was  not  arrived  at  without  a 
considerable  struggle." 

152 


The  definiteness  or  indefinite- 
ness  of  the  subject  and  the  object 
of  the  alleged  trust  is  an  important 
consideration  in  determining  the 
effect  of  the  precatory  words  relied 
upon  as  creating  the  trust;  because 
if  the  testator  has  not  pointed  out 
definitely,  or  made  definite  pro- 
visions for  ascertaining  the  cestui 
or  the  property  which  is  to  be  the 
subject  of  the  trust,  this  fact  is 
strong  evidence  that  he  did  not  in- 
tend to  create  a  trust,  but  intended 
merely  to  state  his  hopes,  wishes, 
or  recommendations,  leaving  the 
legatee  or  devisee  free  to  carry 
them  out  or  not  at  his  own  dis- 
cretion. Mussoorie  Bank  v.  Ray- 
nor,  7  App.  Cas.  321,  330;  Pratt  v. 
Sheppard,  etc.,  Hospital,  88  Md. 
610;  Burnes  v.  Burnes,  137  Fed.  781; 
791;  McDuffie  v.  Montgomery, 
128  Fed.  105;  Wood  r.  Wood,  127  Ky. 
514;  Hill  V.  Page,  36  S.  W.  735. 
(Tenn.  1895);  Nunn  v.  O'Brien, 
83  Md.  198.  See  2  Redfield  on 
Wills  (3d  ed.),  415.  1  Jarman  on 
Wills  (6th  ed.),  366;  1  Ames'  Cases 
on  Trusts  (2d  ed.),  93-95.  The 
effect  of  uncertainty  is  stated  as 
follows  in  Mussoorie  Bank  v.  Ray- 
nor,  7  App.  Cas.  321,  331:  "If 
there  is  unqertainty  as  to  the 
amount  or  nature  to  the  property 
that  is  given  over,  two  difficulties 
at  once  arise.  There  is  not  only 
difficulty  in  the  execution  of  the 
trust  because  the  Court  does  not 
know  upon  what  property  to  lay 
its  hands,  but  the  uncertainty  in 
the  subject  of  the  gift  has  a  reflex 


CHAP.  IV.] 


PRECATORY    WORDS. 


[§  112. 


children    out  of    the  profits  of    the   estate,"'    "I    also    alh/w 
my  son  to  give  her  a  support  off  ray  plantation  during  her 

'  Lucas  V.  Lockhart,  10  Sra.  &  Mar.  4GG. 


action  upon  the  previous  words, 
and  tlirows  doubt  upon  the  inten- 
tion of  the  testator,  and  seems  to 
show  that  he  could  not  possibly 
have  intended  his  words  of  con- 
fidence, hope,  or  whatever  they 
may  be,  —  his  appeal  to  the  con- 
science of  the  first  taker,  —  to  be 
imperative  words." 

If  an  uncertainty  has  the  effect  of 
allowing  that  no  trust  was  intended 
the  property  of  course  remains  in 
the  legatee  or  devisee  named  in 
the  will,  but  where  the  uncertainty 
has  the  effect  of  rendering  void  an 
intended  trust,  a  trust  results  for 
the  next  of  kin  or  heirs  of  the  tes- 
tator. Pratt  V.  Sheppard,  etc.,  Hos- 
pital, 88  Md.  610,  622;  1  Ames' 
Cases  on  Trusts  (2d  ed.),  94. 

A  wide  discretion  in  the  legatee, 
both  as  to  the  amount  of  property 
to  be  used  in  fulfilling  the  wishes 
of  the  testator  and  as  to  the  persons 
who  are  to  receive  it,  is  not  conclu- 
sive against  a  trust  even  when  prec- 
atory words  are  used  to  create  it. 
Collister  v.  Fassitt,  163  N.  Y.  281; 
Carroll  v.  Adams,  10.5  N.  Y.  S.  967. 
See  1  Ames'  Cases  on  Trusts  (2d 
ed.),  99.  But  if  the  court  is  con- 
vinced from  all  the  evidence  that 
the  testator  intended  to  give  the 
devisee  or  legatee  discretion  whether 
or  not  to  carry  out  his  expressed 
wishes  there  can  be  no  trust.  Giles 
V.  Anslow,  128  111.  187;  Wood  v. 
Wood,  127  Ky.  514;  Holmes  v. 
Dalley,  192  Mass.  451. 

Words  expressing  the  "confi- 
dence" or  the  "fullest  confidence" 


or  the  "behef"  of  the  testator  that 
the  legatee  will  make  certain  dis- 
position of  part  or  all  of  the  prop- 
erty for  the  benefit  of  others,  are 
ordinarily  not  as  strongly  indicative 
of  an  intention  to  create  a  trust 
as  are  words  expressing  a  wish  or 
desire.  In  their  natural  meaning 
they  have  a  tendency  to  negative 
an  intention  of  imposing  any  bind- 
ing obligation  upon  the  legatee. 
Cheston  v.  Cheston,  89  Md.  465; 
Poor  V.  Bradbury,  196  Mass.  207; 
Rector  v.  Alcord,  88  Miss.  788; 
In  re  Hanbury,  [1904]  1  Ch.  415; 
In  re  WilUams,  [1897]  2  Ch.  12;  In 
re  Adams  &  Kensington  Vestry, 
27  Ch.  Div.  394,  406.  On  the  other 
hand,  "I  direct"  or  "It  is  my  will" 
or  "I  strictly  enjoin"  or  "I  require" 
are  prima  facie  mandatory  unless 
shown  to  have  been  intended  in  a 
different  sense.  Collister  v.  Fassitt, 
163  N.  Y.  281;  Summers  v.  Higley, 
191  111.  193;  Whittingham  v.  Scho- 
field's  Trustee,  67  S.  W.  846  (Ky. 
1902);  Cnidv.  Field,  103  Ky.  293. 
The  words ' '  admonish  and  charge ' ' 
have  been  held  not  to  be  mandator>'. 
Arnold  V.  Arnold,  41  S.  C.  291. 
But  this  interpretation  of  the  words 
was  based  upon  a  consideration  of 
the  whole  will;  and  the  case  can 
be  of  but  little  value  as  a  guide  to 
the  interpretation  of  similar  words 
in  other  wills.  This  must  be  true 
of  nearly  all  the  decisions  inter- 
preting precatory  words  or  words 
of  recommendation  or  confidence,  for 
no  two  wills  are  exactly  alike  in  all 
respects  and  the  attending  circum- 
153 


§  112.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

life,"  *  were  held  to  create  trusts  in  favor  of  the  parties  to  be 
benefited.  And  so,  where  a  testator  gave  a  sum  of  money  to 
trustees  "  to  pay  the  income  yearly  to  his  son  for  the  support  of 
himself  and  family,  and  the  education  of  his  children,"  it  was 
held  that  the  income  was  taken  in  trust  by  the  son,  and  that  the 
wife  and  children  could  enforce  its  appropriation  in  part  for 
their  support.^     "To  my  daughter  A.  I  give  [naming  certain 

*  Hunter  v.  Stembridge,  12  Ga.  192.  In  this  case  the  court  constinied 
the  word  allow  as  expressive  of  an  intention  —  the  testator  being  an 
illiterate  man  —  that  the  son  should  support  his  mother  out  of  the  prop- 
erty given  him,  and  that  an  absolute  charge  or  trust  was  implied. 

2  Coler.  Littlefield,  35  Maine,  439:  Wright  v.  MiUer,  8  N.  Y.  9;  1  Sandf. 
103;  Whiting  v.  Wliiting,  4  Gray,  240;  Chase  v.  Chase,  2  Allen,  101;  Hadow 
V.  Hadow,  9  Sim.  438;  Jubber  v.  Jubber,  id.  503;  Longmore  v.  Elcum,  2 
Y.  &  C.  Ch.  363;  Leach  v.  Leach,  13  Sim.  304;  Hart  v.  Tribe,  19  Beav.  149; 
Raikes  v.  Ward,  1  Hare,  445;  Crockett  v.  Crockett,  2  Phill.  555.  Technical 
language  ia  not  necessary  to  create  a  trust.  It  is  enough  if  such  intention  is 
apparent.  Thus  words  of  recommendation,  request,  entreaty,  wish,  or  ex- 
pectation, addressed  to  a  devisee  or  legatee,  will  make  him  a  trustee  for  those 
persons  in  favor  of  whom  such  expressions  are  used ;  provided  that,  from  the 
construction  of  the  whole  will,  such  is  the  apparent  intention  of  the  testator, 
and  provided  that  he  has  pointed  out  with  sufficient  clearness  and  certainty 
both  the  subject-matter  and  the  object  of  the  trust.  Thus,  in  Massey  v. 
Sherman,  Amb.  520,  a  testator  devised  property  to  his  wife,  not  doubting 
that  she  would  dispose  of  the  same  to  and  among  his  children  as  she  should 
please,  it  was  held  to  be  a  trust  for  the  children.  See  also  Macey  v.  Shurmer, 

1  Atk.  389;  Wynne  v.  Hawkins,  1  Bro.  Ch.  179;  Parsons  v.  Baker,  18  Ves. 
476;  Malone  v.  O'Connor,  2  Lloyd  &  Goold,  465.    And  in  Pierson  v.  Garnet, 

2  Bro.  Ch.  38,  226,  a  testator  gave  a  residue  to  A.  with  his  djing  request 

stances  wliich  help  to  show  the  in-  use    the    words    in    a    mandatory 

tention    of    the    testator    must    in-  sense.      See     Mussoorie     Bank     v. 

evitably    be    different.      For    this  Raynor,    7   App.    Cas.   321;   In   re 

reason  it  is  of  doubtful  value   to  Hanbury,   [1904]  1    Ch.  415;    Bills 

cite  the  rulings  of  different  courts  v.   Bills,   80  Iowa,   269;  Durant  v. 

upon  particular  words.  Smith,   159   Mass.  229;  Matter  of 

Where  the  doubtful  words  relate  Gardner,   140  N.  Y.  122;  Street  v. 

entirely   to   the   disposition   of  the  Gordon,  58  N.  Y.  S.  860,  41  App. 

property    after    the    death    of    the  Div.  439;  Boyle  v.  Boyle,  152  Pa. 

devisee  or  legatee  and  do  not  pur-  St.    108;    Wood    v.    Fichthom,   144 

port  to  restrict  his  use  or  his  full  Pa.  St.  287;  Russell  v.  U.  S.  Trust 

power    of    disposition    during    his  Co.,  136  Fed.  758;  Nunn  v.  O'Brien, 

life,    the    natural    presumption    is  83  Md.  198. 
strongly    against    an    intention    to 
154 


CHAP.  IV.]  PRECATORY    WORDS.  [§   112. 

property]  for  the  support  of  my  daughter  C."  creates  a 
trust.' 

that  if  A.  died  without  issue  he  would  dispose  of  it  in  a  certain  manner 
pointed  out;  but  Lord  Kenyon  and  Lord  Thurlow  held  that,  in  the  event 
a  trust  was  imphed  and  created.  And  see  Re  O'Bierne,  1  Jon.  &  La.  352. 
And  so  in  Mahm  v.  Kcighley,  2  Ves.  Jr.  333,  3.59,  a  testator  recommended 
a  daughter  to  whom  he  made  a  bequest,  to  dispose  of  it  at  her  death  in  a 
certain  manner,  and  it  was  held  to  create  a  trust.  See  also  Paul  v.  Compton, 
8  Ves.  380:  Ford  v.  Fowler,  3  Beav.  146;  Knott  v.  Cottee,  16  Beav.  77; 
Cholmondeley  v.  Cholmondeley,  14  Sim.  590.  But  in  Meggison  v.  Moore, 
2  Ves.  Jr.  630,  the  word  "recommend,"  under  the  pecuhar  circumstances 
of  the  case,  was  held  not  to  create  a  trust;  but  the  case  throws  no  particular 
light  upon  the  principle.  In  Bird  v.  Wade,  3  Ves.  &  B.  198,  2  Ves.  467,  the 
testator  added  to  his  bequest  of  a  part  of  his  property  that  it  was  his  will 
and  desire  that  the  bequest  be  left  entirely  to  her  disposal  among  such  of  her 
relations  as  she  may  think  proper.  The  devisee  having  died  without  dispos- 
ing of  the  property,  it  was  held  to  be  a  trust  for  her  next  of  kin.  See  also 
Brest  V.  Offley,  1  Ch.  R.  246;  Harding  v.  Glyn,  1  Atk.  469;  Earl  of  Bute  v. 
Stuart,  2  Eden,  87;  1  Bro.  P.  C.  Taml.  476;  Wright  v.  AtkjTis,  19  Ves.  299; 
Cooper,  111;  Gary  v.  Gary,  2  Sch.  &  Lef.  173,  189;  Forbes  v.  Bale,  3  Mer. 
441;  Horwood  v.  West,  1  Sim.  &  St.  387. 

In  Prevost  v.  Clarke,  2  Madd.  458,  a  testatrix  gave  property  to  her 
daughter,  and  "entreated"  her  son-in-law,  husband  of  the  daughter,  if 
he  should  not  have  children  by  her  daughter,  and  should  survive  her,  that 
he  would  leave  any  part  of  the  property  that  came  to  him  to  her  other  chil- 
dren and  grandchildren  at  his  decease.  These  words  were  held  to  create  a 
contingent  trust  for  her  other  children  and  grandchildren.  So  in  Pilkington 
V.  Boughey,  12  Sim.  114,  where  a  testator  recited  in  his  will  that  he  had 
purchased  an  estate  for  a  particular  purpose,  and  then  devised  it  to  cer- 
tain individuals  in  tnist,  and  "trusted"  that  they  would  apply  it  to  such 
purposes  as  they  knew  he  would  most  approve  of,  it  was  held  to  be  a  tnist. 
In  Foley  v.  Parry,  2  My.  &  K.  138,  a  testator  gave  property  to  his  wife 
for  life,  the  remainder  to  his  nephew  for  life,  and  tlion  declared  it  to  be 
liis  particular  wish  and  request  that  his  wife,  or  a  tliird  person,  should 
superintend  and  take  care  of  the  education  of  his  nephew;  and  it  was 
determined  that  there  was  a  trust  in  the  life-estate  given  to  the  widow  to 
maintain  and  educate  the  nephew  until  he  was  twenty-one.  See  also  same 
case  in  5  Sim.  138.  So  more  doubtful  expressions  have  been  held  to 
create  trusts;  as  "I  desire  him  to  give,"  Mason  v.  Limburj',  cited  Vernon 
V.  Vernon,  Amb.  4;  "I  hereby  request,"  Nowlan  t'.  Nelligan,  1  Bro.  Ch. 
489;  "I  empower  and  authorize  her  to  settle  and  dispose  of  the  estate  to 
such  persons  as  she  shall  think  fit  by  her  will,  confiding  in  her  not  to  alienate 
the  estate  from  my  family,"  Griffiths  v.  Evans,  5  Beav.  241:  see  also  Brook 


1  Buflfington  v.  Maxam,  140  Mass.  557. 

155 


§  113.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

§  113.   On  the  other  hand,  it  has  been  held  that  no  trust  was 
implied  when  property  was  given  to  a  donee  connected  with 

V.  Brook,  3  Sm.  &  Gif.  280;  Alexander  v.  Alexander,  2  Jur.  (n.  s.)  898;  "I 
advise  him  to  settle,"  Parker  v.  Bolton,  5  L.  J.  (n.  s.)  Ch.  98;  "  My  last  wish, 
my  dear  daughter,  is  that  you  do  give  ray  granddaughter  £1000,"  Hinxman 
V.  Poynder,  5  Sim.  546;  "require  and  entreat,"  Taylor  v.  George,  2  Ves. 
&  B.  378;  "trusting  that  he  will  preserve  the  same,  so  that,  after  his  decease, 
it  will  go  and  be  divided,"  etc.,  Baker  v.  Moseley,  12  Jur.  740;  "under  the 
conviction  that  he  will  dispose,"  etc.,  Barnes  v.  Grant,  26  L.  J.  Ch.  92,  2 
Jur.  (n.  s.)  1127;  "to  apply  the  same,"  Saulsbury  v.  Denton,  3  K.  &  J.  392; 
"the  other  children  may  be  allowed  to  participate,"  etc.,  Liddard  v.  Lid- 
dard,  6  Jur.  (n.  s.)  459,  28  Beav.  266.  As  before  said,  however,  such  ex- 
pressions will  not  create  a  trust  if  by  the  context  no  trust  is  intended  to 
arise;  as  if  a  trust  is  at  one  time  created,  but  by  a  codicil  is  revoked  on 
account  of  the  inconvenience,  and  there  is  a  direction  that  the  "  property  be 
disposed  of  for  the  good  of  the  family."  Alexander  v.  Alexander,  2  Jur. 
(n.  s.)  898.  The  question  in  all  cases  is,  is  the  devisee  or  legatee  a  beneficiary 
or  a  trustee  of  the  gift  bestowed  upon  him;  and  that  depends  upon  the  in- 
tention of  the  testator.  But  parol  evidence  of  the  intention  of  the  testator 
cannot  be  introduced,  Irvine  v.  Sullivan,  L.  R.  8  Eq.  673.  If  there  is  a  direct 
trust,  there  is  no  doubt;  if  there  are  precatory  words,  then  it  remains  to 
determine  whether  there  is  an  imperative  trust,  or  whether  the  words  are 
merely  suggestions  to  guide  the  discretion  of  the  devisee  in  disposing  of  the 
property,  the  testator  having  implicit  confidence  and  reliance  in  him,  and 
leaving  him  the  sole  judge  whether  he  will  follow  the  suggestions  or  not. 
If  the  testator  supposed  that  he  was  creating  an  imperative  trust,  whether 
express  or  imperative  from  precatory  words,  a  trust  will  be  raised  because 
such  is  the  intention;  and  if  such  trust  fails  because  the  purposes  of  the 
trust  are  uncertain,  or  the  amount  of  the  property  of  the  trust  is  uncer- 
tain, or  for  any  other  reason,  it  will  still  be  a  trust;  but  it  will  result  to 
the  heirs  at  law,  next  of  kin,  or  residuary  legatees.  See  post,  §§  153-161. 
But  such  uncertainty  in  the  objects  of  the  trust,  or  in  the  persons  to  be 
benefited,  or  in  the  amount  of  the  property  to  be  subjected  to  the  trust, 
or  in  the  manner  of  applying  it,  are  facts  and  circumstances,  if  they  exist, 
in  the  will  itself,  which  are  to  be  taken  into  consideration  in  construing 
it.  See  post,  §  116;  Barnard  v.  MinshuU,  1  Johns.  287,  1  Jarm.  on  Wills, 
359  (3d  Lond.  ed.).  There  is  also  another  consideration.  If  there  is  an 
absolute  gift  in  the  first  instance  to  the  donee,  mere  precatory  words  will 
not  in  general  annex  a  trust  to  the  gift;  as  in  Meredith  v.  Heneage,  1  Sim. 
542,  10  Price,  306,  the  bequest  was  to  the  donee,  "unfettered  and  unlimited," 
followed  by  precatory  words,  and  they  were  held  not  to  create  a  trust.  In 
Bonser  v.  Kinnear,  2  Gif.  195,  there  was  a  gift  to  the  wife  "for  her  sole  use  and 
benefit,  she  maintaining  the  children";  it  was  held  to  be  a  trust,  the  words 
implying  the  trust  being  a  part  of  the  gift.  But  in  Wood  v.  Cox,  1  Keen,  317, 
there  was  a  gift  to  the  devisee  "for  his  own  use  and  benefit,"  trusting  and 
156 


CHAP.  IV.]  PRECATORY    WORDS.  [§  113. 

expression  of  kindness  and  good-will  towards  other  persons, 
as  with  a  hope  that  "he  would  continue  it  in  the  family;"  '  or, 

wholly  confiding  in  his  honor  to  act  in  strict  conformity  to  the  testator's 
wishes.  There  were  some  other  circumstances,  and  Lord  Langdale  held  it 
to  be  an  implied  trust;  but  Lord  Cottenham  said  that  to  make  the  de- 
visee a  trustee,  the  words  "for  hi,s  own  use  and  benefit"  must  be  expunged 
from  the  will:  2  My.  &  Cr.  (586;  and  see  tlie  judgment  in  the  case  of  Irvine  v. 
Sullivan,  L.  R.  S  Eq.  673.  In  Winch  v.  Bnitton,  14  Sim.  379,  and  in  Bards- 
well  V.  Bardswell,  9  id.  319,  there  were  gifts  to  the  use,  benefit,  and  dis- 
posal, absolutely,  of  the  devisees,  "nevertheless  earnestly  conjuring  them 
to  dispose  of  them  in  a  certain  manner;  and  it  was  held  that,  under  the 
form  of  the  gifts  there,  there  were  no  trusts.  See  also  White  v.  Briggs,  15 
Sim.  33;  Fox  v.  Fox,  27  Beav.  301.  So  in  Johnson  v.  Rowlands,  2  De  G.  &  S. 
a  gift  to  be  disposed  of  as  she  shall  think  proper,  followed  by  a  recom- 
mendation, was  held  not  to  create  a  trust.  The  case  of  Williams  v. 
V.  WiHiams,  1  Sim.  (n.  s.)  358,  is  nearly  to  the  same  effect;  and  see 
Green  v.  Marsden,  1  Drew.  646.  In  some  of  these  cases  the  element  of  im- 
certainty  enters  into  the  construction:  see  Bardswell  v.  Bardswell,  14  Sim. 
379;  Williams  v.  Williams,  1  Sim.  (n.  s.)  358;  Webb  v.  Wools,  2  Sim.  (n.  s.) 
267,  was  a  strong  case  in  this  respect.  The  gift  was  to  the  wife,  her  executors, 
administrators,  and  assigns,  "to  and  for  her  and  their  sole  use  and  benefit, 
upon  the  fullest  trust  and  confidence  that  she  will  dispose  of  the  same,"  &c. 
It  was  said  that  to  allow  the  latter  words  to  create  a  trust  would  be  to  coun- 
teract the  former  words.  In  other  cases  where  the  gift  was  in  nearlj'  the 
same  words  but  "in  full  confidence  that  she  will  bestow  it,  on  her  decease,  to 
my  children,"  &c.  Le  Marchant  v.  Le  Marchant,  L.  R.  18  Eq.  414;  Curnick 
V.  Tucker,  L.  R.  17  Eq.  320;  it  was  held  that  the  widow  took  a  life-estate, 
with  a  power  to  appoint  among  the  children:  Ware  v.  Mallard,  21  L.  J.  Ch. 
355;  16  Jur.  492;  Gulley  v.  Cregoe,  24  Beav.  185.  If  the  words  of  gift  to 
the  wife  may  be  construed  as  making  the  gift  to  her  sole  and  separate  use, 
independent  of  her  husband,  the  trust  may  be  sustained :  Cholmondeley  v. 
Cholmondeley,  14  Sim.  590.  See  also  Stubbs  v.  Sargon,  2  Keen,  255,  3  My. 
&  Cr.  513;  but  see  Green  v.  Marsden,  1  Drew.  646.  If  the  expressions  are 
mere  statements  of  good-will  towards  other  persons,  a  trust  will  not  be  im- 
plied: Buggins  V.  Yeats,  8  Vin.  Ab.  72,  PI.  27;  Sale  v.  Moore,  1  Sim.  534; 
Hoy  V.  Master,  6  Sim.  568;  Reeves  v.  Baker,  18  Beav.  372;  Lechmere  v. 
Lavie,  2  My.  &  K.  197;  Abraham  v.  Almon,  1  Russ.  509;  Harland  v.  Trigg, 
1  Bro.  Ch.  142;  Curtis  v.  Rippon,  5  Madd.  434.  But  where  a  testator 
gave  property  to  his  son,  and  ordered  him  to  take  care  and  provide  for  his 
daughter,  it  was  held  that  she  was  entitled  to  a  proxision:  Broad  v.  Bevan, 


»  Harland  v.  Trigg,  1  Bro.  Ch.  142;  Wright  v  Atkyns,  19  Ves.  279; 
G.  Coop.  121;  Woods  v.  Woods,  1  M.  &  Cr.  401;  Parkinson's  Trust,  1  Sim. 
(n.  s.)  242;  Williams  v.  Williams,,  id.  358.  See  also  White  t;.  Briggs,  2  Phill. 
583;  Liley  v.  Hey,  1  Hare,  580. 

157 


§  113.]  IMPLIED   TRUSTS.  [CHAP.    IV. 

with  a  request,  "to  distribute  it  among  such  members  of  the 
donee's  family"  as  he  should  deem  most  deserving;^  or,  "in 
full  confidence  that  the  donee  would  devise  it  to  such  heirs  of  the 
testator's  father  as  she  might  think  best  deserved  a  preference;"  ^ 
or  with  a  recommendation  that  the  donee  "  would  consider  the 
testator's  relations;"^  or,  where  the  recommendation  was  "to 
consider  certain  persons,"  ^  "to  be  kind  to  them,"  ^  "to  remember 
them,"  ®  "to  do  justice  to  them,"  '  "to  make  ample  provision 
for  them,"  *  "to  use  the  property  for  herself  and  her  children, 
and  to  remember  the  church  of  God  and  the  poor,"  ^  "to  give 
what  should  remain  at  his  death,  or  what  he  should  die  seized 

1  Russ.  511,  n.  It  must  be  repeated,  that  in  many  cases  the  element  of 
uncertainty  as  to  the  property  to  be  affected  by  the  words  of  recom- 
mendation has  entered  largely  into  the  construction  given  to  wills  by 
courts;  and  in  that,  as  in  most  other  circumstances  attending  the  con- 
struction of  a  will,  each  case  must  depend  upon  the  particular  words  of 
the  will  and  the  context  in  which  they  are  found.  See  Lefroy  v.  Flood,  4 
Ir.  Ch.  1,  12;  Gynne  v.  Hawkins,  1  Bro.  Ch.  179;  Horwood  v.  West,  1  Sim. 
&  St.  387;  Huskisson  v.  Bridge,  15  Jur.  738:  Young  v.  Martin,  2  Y.  &  C. 
Ch.  582,  Ex  parte  Payne,  id.  636;  Knight  v.  Knight,  3  Beav.  148;  Knight  v. 
Boughton,  11  CI.  &  Fin.  513;  12  Beav.  312;  Bonser  v.  Kinnear,  2  Gif. 
195;  Quayle  v.  Davidson,  12  Moore,  P.  C.  268;  Maud  v.  Maud,  27  Beav. 
615.  But  see  Malone  v.  O'Connor,  2  Lloyd  &  Goold,  465.  Of  course,  if 
no  trust  is  implied  from  the  words  of  recommendation  used  in  the  will, 
the  donee  takes  the  absolute  beneficial  as  well  as  legal  interest  to  the  ex- 
tent to  which  it  is  limited.  Stubbs  v.  Sargon,  2  Keen,  255;  3  My.  &  Cr. 
507;  Gloucester  v.  Wood,  3  Hare,  131;  1  H.  L.  Cas.  272;  Briggs  v.  Penny,  3 
De  G.  &  S.  547;  3  Mac.  &  G.  546;  Fowler  v.  Garlike,  1  R.  &  My.  232. 
But  if  a  trust  is  intended,  but  it  is  so  uncertain  that  it  cannot  be  executed, 
it  will  result  to  the  heirs  or  next  of  kin,  or  residuary  legatee  or  devisee, 
according  to  the  circumstances. 

1  Green  v.  Marsden,  1  Drew.  646. 

2  Meredith  v.  Heneage,  1  Sim.  542;  and  see  Wright  v.  Atkyns,  G.  Coop. 
119;  Curnick  v.  Tucker,  L.  R.  17  Eq.  320. 

^  Sale  V.  Moore,  1  Sim.  534;  Macnab  v.  Whitbread,  17  Beav.  299;  Wright 
V.  Atkyns,  G.  Coop.  119. 

*  Ibid.;  Hoy  v.  Master,  6  Sim.  568. 
^  Buggins  V.  Yates,  9  Mod.  122. 

•  Bardswell  v.  Bardswell,  9  Sim.  319. 

^  Le  Maitre  v.  Bannister,  Pr.  Ch.  200,  and  note;  Pope  v.  Pope,  10  Sim.  1. 

*  Winch  V.  Brutton,  14  Sim.  379;  Fox  v.  Fox,  27  Beav.  301. 

•  Curtis  i;.  Rippon,  5  INIadd.  434. 

158 


CHAP.  IV.J  PRECATORY    WORDS.  [§   113. 

or  possessed  of,"  ^  or,  "to  finally  appropriate  as  he  pleases;  " 
with  a  recommendation  "to  divide  among  certain  persons,"^ 
or,  "to  divide  and  dispose  of  the  savings,'  or  the  bulk  of  the 
property;"*  or,  where  the  testator  "recommends,  hut  doe3 
not  absolutely  enjoin;"  ^  or,  where  a  testator  gave  all  his  prop- 
erty to  his  wife  absolutely,  and  by  a  codicil,  in  the  form  of  a 
letter  to  her,  said  it  was  his  wish  "  that  she  should  have  every- 
thing, using  her  judgment  when  to  dispose  of  it  among  the  chil- 
dren, but  that  he  should  be  unhappy  if  he  thought  that  any  one 
not  of  her  family  should  be  the  better  for  what  he  felt  confi- 
dence she  would  so  well  dispose  of;"®  or,  where  everything 
was  given  to  a  "  wife  in  the  fullest  trust  and  confidence  reposed 
in  her  that  she  will  dispose  of  the  same  for  the  joint  benefit  of 
herself  and  my  children,"  ^  or  where  an  estate  was  given  to  a 
wife,  "  being  fully  satisfied  that  she  will  dispose  of  the  same,  by 
will  or  otherwise,  in  a  fair  and  equitable  manner  to  our  united 
relatives,  bearing  in  mind  that  my  relatives  are  in  better  circum- 
stances than  hers;"^  or,  where  all  the  testator's  estate  was 
given  to  his  wife,  recommending  her  "to  give  the  same  to  his 
children,  at  such  time  and  in  such  manner  as  she  should  think 
best; "  ®  or,  where  a  bequest  of  a  house  and  an  annuity  was  made 
to  a  niece,  for  the  support  of  herself  and  her  nephews  and  nieces 
whom  she  then  had  under  her  care,  "  and  of  such  other  persons 
as  she  from  time  to  time  might  wish  and  request  to  be  members 

^  Sprange  v.  Barnard,  2  Bro.  Ch.  585;  Green  v.  Marsden,  1  Drew.  646; 
Pushman  v.  Filliter,  3  Ves.  7;  Wilson  v.  Major,  11  Vea.  205;  Eade  v.  Eade, 

5  Madd.  118;  Wynne  v.  Hawkins,  1  Bro.  Ch.  179;  Lechmere  v.  Lavie,  2  M. 

6  K.  197;  Bland  v.  Bland,  2  Cox,  349;  Att.  Gen.  v.  Hall,  Fitzg.  314;  and  see 
Meredith  v.  Heneage,  1  Sim.  542;  Tibbits  v.  Tibbits,  19  Ves.  655;  Pope  v. 
Pope,  10  Sim.  1. 

2  White  V.  Briggs,  15  Sim.  33. 

'  Cowman  v.  Harrison,  10  Hare,  234. 

*  Palmer  v.  Simmonds,  2  Drew.  221. 

*  Young  V.  Martin,  2  Y.  &  C.  Ch.  852. 

*  Williams  v.  WiUiams,  1  Sim.  (n.  s.)  358. 

'  Webb   V.  Wools,  2  Sim.   (n.  s.)  267;  Byne  t;.  Blackburn,  26  Beav. 


41. 


•  Reeves  v.  Baker,  18  Beav.  372. 
'  Gilbert  v.  Chapin,  19  Conn.  351. 

159 


§   114.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

of  her  family;"  ^  or,  where  property  was  given  to  a  daughter, 
"to  be  hers  forever,  to  be  disposed  of  as  she  may  think  proper 
among  her  children  and  grandchildren,  by  will  or  otherwise;"  ^ 
or  a  devise  to  a  wife  of  all  a  testator's  property,  recommending 
her  "  to  make  some  small  allowance,  at  her  convenience,  to  each 
of  his  brothers  and  sisters:  say,  $1000  to  each;  "  ^  or,  a  devise 
"of  the  use,  benefit,  and  profits,  to  a  wife  absolutely,  having 
full  confidence  that  she  will  leave  the  surplus  to  be  divided  at  her 
decease  justly  among  her  children;  "  ^  or,  where  the  testator, 
expressed  an  "earnest  hope"  and  "particular  request"  that  "the 
donee  would  give  the  property  to  some  one  bearing  the  family 
name."  ^  In  a  case  where  A.  gave  property  to  B.  and  directed 
that  his  daughter  should  reside  with  and  be  maintained  by  B. 
and  she  resided  of  her  own  accord  in  another  place,  it  was  held 
that  there  was  no  implied  trust  for  her  if  she  resided  in  another 
place.® 

§  114.  It  is  an  easy  task  to  enumerate  cases  where  trusts 
have  been  implied  and  where  they  have  not  been  implied;  but 
it  is  difficult  to  reconcile  all  the  decisions.  The  words  "will," 
"wish,"  "request,"  "hope,"  "desire,"  "trust,"  "have  confi- 
dence," "recommend,"  "not  doubting,"  and  other  similar 
words  found  so  often  in  wills,  express  a  state  of  mind  in  the  testa- 
tor, and  they  generally  operate  as  a  direct  gift,  devise,  or  be- 
quest; but  they  are  frequently  so  used  that  it  is  doubtful 
whether  they  are  absolute  directions,  or  mere  suggestions  to  be 
acted  on  or  not  according  to  the  discretion  of  the  donee.  Every 
case  must  depend  upon  the  construction  of  the  particular  will 
under  consideration.^    The  point  really  to  be  determined  in  all 

1  Harper  v.  Phelps,  21  Conn.  257. 

'  Thompson  v.  McKisick,  3  Humph.  631. 

»  EUis  V.  Ellis,  15  Ala.  296. 

*  Pennock's  Estate,  20  Pa.  St.  268;  reversing  Coate's  Appeal,  2  Barr, 
129,  and  McKonkey's  Appeal,  1  Harris,  253. 

'  Hood  V.  Oglander,  34  Beav.  513. 

•  Wilson  V.  Ball,  L.  R.  4  Ch.  581. 

^  Negroes  v.  Palmer,  18  Md.  165;  Meggison  v.  Moore,  2  Ves.  Jr.  633. 
[See  supra,  §  112,  note  a,  page  150.] 

160 


CHAP.    IV.J  PRECATORY    WORDS.  [§    114. 

these  cases  is  whether,  looking  at  the  whole  context  of  the  will, 
the  testator  intended  to  impose  an  obligation  on  his  legatee  to 
carry  his  wishes  into  effect,  or  whether,  having  expressed  his 
wishes,  he  intended  to  leave  it  to  the  legatee  to  act  on  them  or 
not  at  his  discretion.  It  is  doubtful  if  there  exist  any  formula 
for  bringing  to  a  direct  test  the  question,  whether  words  of  "re- 
quest," "hope,"  or  "recommendation,"  are  or  are  not  to  be 
considered  obligatory.^    The  most  that  can  be  done  is  to  state  a 

»  Wamer  v.  Bates,  98  Mass.  276;  Williams  v.  Williams,  1  Sim.  (n.  s.) 
358;  by  Sir  Knight  Bruce.  In  Wright  v.  Atkyns,  1  T.  &  R.  157,  Lord  Eldon 
said  that  in  order  to  determine  whether  the  words  create  a  trust  or  not, 
i.t  is  matter  of  observation,  —  first,  that  the  words  should  be  imperative; 
secondly,  that  the  subject  must  be  certain;  and  thirdly,  that  the  object 
must  be  as  certain  as  the  subject.  See  Wood  v.  Cox,  2  My.  &  Cr.  684;  Pope 
V.  Pope,  10  Sim.  1.  In  Knight  v.  Knight,  3  Beav.  148,  Lord  Langdale  said, 
"It  is  not  every  wish  or  expectation  which  a  testator  may  express,  nor  every 
act  that  he  may  wish  his  successors  to  do,  that  can  or  ought  to  be  executed 
and  enforced  as  a  trust;  and  in  the  infinite  variety  of  expressions  employed 
and  of  cases  which  arise,  there  is  often  the  greatest  difficulty  in  determining 
whether  the  act  desired  or  recommended  is  an  act  which  the  testator  in- 
tended to  be  executed  as  a  trust.  In  the  construction  of  wills  it  is  the  duty  of 
the  court  to  give  effect  to  the  intention  of  the  testator,  whenever  it  can  be 
ascertained."  Then,  after  stating  that  in  decreeing  trusts  wills  have  been 
made  rather  than  executed,  and  that  caution  is  necessary,  his  lordship  goes 
on  to  say,  "that  as  a  general  rule  it  has  been  laid  down  that  when  property 
is  given  absolutely  to  any  person,  and  the  same  person  is  by  the  giver,  who 
has  power  to  command,  recommended  or  entreated  or  wished  to  dispose  of 
the  property  in  favor  of  another,  the  recommendation  or  entreaty  or  wish 
shall  be  held  to  create  a  trust;  first,  if  the  words  are  so  used  that,  upon  the 
whole,  they  ought  to  be  construed  as  imperative;  secondly,  if  the  subject  of 
the  wish  be  certain;  and,  tliirdly,  if  the  objects  or  persons  intended  to  have 
the  benefit  of  the  recommendation  or  wish  be  also  certain."  Same  case 
under  the  name  of  Knight  v.  Boughton,  11  CI.  &  Fin.  548. 

The  learned  editors  to  Hill  on  Trustees,  p.  73  (4th  Am.  ed.),  have  ex- 
amined the  American  and  English  cases,  and  state  the  following  rules, 
which  seem  to  be  fairly  deducible  from  the  adjudged  cases:  — 

1.  Precatory  words  in  a  will,  equally  with  direct  fiduciary  expressions, 
will  create  a  trust;  the  wish  of  a  testator,  like  the  request  of  a  sovereign, 
is  equivalent  to  a  command. 

2.  Discretionary  e.xpressions  which  leave  the  application  or  non-appli- 
cation of  the  subject  of  the  devise  to  the  objects  contemplated  by  the 
testator  entirely  to  the  caprice  of  the  devisee,  will  prevent  a  trust  from 
attaching;  but  a  mere  discretion  in  regard  to  the  method  of  application  of  the 

VOL.  I.  —  11  161 


§   115.]  IMPLIED    TRUSTS.  [CHAP.    TV. 

few  general  rules  that  lead  to  the  construction  of  particular 
wills. 

§  115.  However  strong  the  language  of  recommendation  or 
request  may  be,  a  trust  will  not  be  implied  if  the  testator  de- 
clare that  such  is  not  his  intention,  as  if  he  declares  that  the 
gift  shall  be  "unfettered  or  unlimited,"  or  if  he  "recommends 
but  does  not  enjoin."  ^  And  so  a  trust  will  not  be  implied  if  such 
a  construction  of  the  precatory  words  should  render  them  re- 
pugnant to,  or  inconsistent  with,  other  parts  of  the  same  in- 
strument.^ If  construing  a  recommendation  or  the  expression 
of  a  wish  into  a  trust  would  contradict  in  terms  the  preceding 
bequest,  a  trust  will  not  be  implied.^  As  if  the  gift  is  absolute, 
and  of  all  the  testator's  property,  and  of  both  the  legal  and 
equitable  interest  in  it,  words  of  recommendation  will  not  cut  it 
down  into  a  trust;  or,  in  the  words  of  Kindersley,  V.  C,  "where 
the  later  words  of  a  sentence  in  a  will  go  to  cut  down  an  absolute 
gift  contained  in  the  first  part  of  a  sentence,  and  are  inconsistent 
with  such  gift,  the  court  will,  if  it  can,  give  effect  to  the  abso- 
lute gift."  *  The  same  rule  was  stated  by  Lord  Cottenham  thus: 
"Though  'recommendation'  may  in  some  cases  amount  to  a 
direction  and  create  a  trust,  yet  that  being  a  flexible  term,  if 

subject,  or  the  selection  of  the  object,  wnll  not  be  inconsistent  with  a 
trust. 

3.  Precatory  words  will  not  be  construed  to  confer  an  absolute  gift  on 
the  first  taker,  merely  because  of  failure  or  uncertainty  in  the  object  or 
subject  of  the  devise. 

4.  But  failure  or  uncertainty  will  be  an  element  to  guide  the  court  in  con- 
struing words  of  doubtful  significancy  adversely  to  a  trust. 

1  Meredith  v.  Heneage,  1  Sim.  543;  10  Price,  230;  Hoy  v.  Master,  6 
Sim.  568;  Young  v.  Martin,  2  Y.  &.  C.  Ch.  582;  Huskisson  v.  Bridge,  4  De 
G.  &  Sm.  245;  Warner  v.  Bates,  98  Mass.  277;  Whipple  v.  Adam,  1  Met. 
444;  Eaton  v.  Witts,  L.  R.  4  Eq.  151 ;  Barrett  v.  Marsh,  126  Mass.  213.  [En- 
der's  Ex'r  v.  Tasco,  89  Ky.  17;  Sale  v.  Thomberry,  86  Ky.  266;  Eberhardt 
t'.  PeroUn,  49  N.  J.  Eq.  570;  Burnes  v.  Bumes,  137  Fed.  781.] 

2  Brunson  v.  Hunter,  2  Hill,  Ch.  490;  Knott  v.  Cottee,  2  PhiU.  192. 
[MitcheU  V.  Mitchell,  143  Ind.  113;  In  re  Oldfield,  (1904)  1  Ch.  549.] 

*  Webb  V.  Wools,  2  Sim.  (n.  s.)  267;  Bardswell  v.  Bardswell,  9  Sim.  319. 

*  Webb  V.  Wools,  2  Sim.  (n.  s.)  267;  Van  Duyne  v.  Van  Duyne,  1  Mc- 
Carter,  397. 

162 


CHAP.    IV.]  PRECATORY    WORDS.  (§11^. 

such  a  construction  of  it  be  inconsistent  with  any  positive  pro- 
vision in  the  will,  it  is  to  be  considered  as  a  recommendation  and 
nothing  more."  '  The  flexible  term  must  give  way  to  the  in- 
flexible, if  the  two  cannot  stand  together  as  they  are  expressed. 

§  116.  Again,  a  trust  will  not  be  implied  from  precatory  words 
where  it  would  be  impracticable  for  a  court  to  deal  with  and 
execute  it ;  as  if  a  testator  should  devise  a  house  to  his  wife,  and 
express  a  wish  that  his  sister  should  live  with  her,  for  the  sister 
takes  no  interest  in  the  house,  and  a  court  cannot  decree  two 
persons  to  live  together.^  So  where  a  testator  devised  a  dwelling- 
house  and  an  annuity  to  a  niece,  for  the  support  of  herself  and 
her  nephews  and  nieces  then  living  with  her,  and  of  such  other 
persons  as  she  from  time  to  time  might  request  to  be  members 
of  her  family.^  Nor  will  a  trust  be  implied  if  there  is  uncertainty 
as  to  the  property  to  be  subjected  to  the  trust,^  or  as  to  the 
persons  to  be  benefited  by  the  trust,^  or  as  to  the  manner  in  which 
the  property  is  to  be  applied.  Lord  Alvanley  stated  the  rule  to 
be  "  that  a  trust  would  be  implied  only  where  the  testator  points 


'  Knott  V.  Cottee,  2  Phill.  192;  Second,  etc.  Church  v.  Desbrow,  52 
Penn.  St.  219. 

»  Graves  v.  Graves,  13  Ir.  Ch.  182;  Hood  v.  Oglander,  34  Beav.  513. 

'  Harper  v.  Phelps,  21  Conn.  257. 

*  Lechmere  v.  Lavie,  2  M.  &  K.  197;  Knight  v.  Knight,  3  Beav.  148; 
Meredith  v.  Heneage,  1  Sim.  556;  Buggins  v.  Yates,  9  Mod.  122;  Sale  v. 
Moore,  1  Sim.  534;  Anon.  8  Vin.  72;  Tibbits  i-.  Tibbits,  19  Ves.  655;  Wynne 
V.  Hawkins,  1  Bro.  Ch.  179;  Pierson  v.  Garnet,  2  id.  45,  230;  Sprange  v. 
Barnard,  id.  585;  Bland  v.  Bland,  2  Cox,  349;  Le  Maitre  v.  Bannister,  and 
Eales  V.  England,  Pr.  Ch.  200;  Pushman  v.  FilUter,  3  Ves.  7;  Att.  Gen.  v. 
Hall,  Fitzg.  314;  Wilson  v.  Major,  11  Ves.  205;  Eade  v.  Eade,  5  Madd.  118; 
Curtis  V.  Rippon,  id.  434;  Russell  v.  Jackson,  10  Hare,  213;  Knight  v.  Bough- 
ton,  11  CI.  &  Fin.  513;  Fhnt  v.  Hughes,  6  Beav.  342;  Lines  v.  Darden,  5 
Fla.  51.     [See  §  112,  note.) 

"  Harland  v.  Trigg,  1  Bro.  Ch.  142;  Wynne  v.  Hawkins,  id.  179;  Tib- 
bits V.  Tibbits,  19  Ves.  655;  Richardson  v.  Chapman,  1  Bums,  Ecc.  L.  245; 
Pierson  v.  Garnet,  2  Bro.  Ch.  45,  230;  Knight  t'.  Knight,  3  Beav.  148;  Sale 
V.  Moore,  1  Sim.  534;  Gary  v.  Gary,  2  Sch.  &  Lef.  189;  Meredith  r.  Heneage, 
1  Sim.  542;  Ex  parte  Payne,  2  Y.  &  C.  Ch.  636;  Knight  v.  Boughton,  11 
CI.  &  Fin.  513;  Lines  v.  Darden,  5  Fla.  51.    [See  §  112,  note.] 

103 


§  117.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

out  the  objects,  the  property,  and  the  way  in  which  it  shall  go."  ^ 
If  the  subjects  and  objects  of  the  supposed  trust  are  left  uncer- 
tain by  a  testator,  the  court  will  infer  that  no  obligation  was 
intended  to  be  imposed  upon  the  donee,  but  that  the  whole  dis- 
position was  left  to  his  discretion.^  So  if  a  mere  power  to  appoint 
is  given  to  the  first  taker,  to  be  exercised  or  not  at  his  discretion, 
no  trust  will  be  implied.^  And  no  trust  will  be  implied,  if,  tak- 
ing the  whole  instrument  and  all  the  circumstances  together,  it  is 
more  probable  than  otherwise  that  the  testator  intended  to  com- 
municate a  discretion  and  not  an  oblip'ation.^ 

§  117.  There  is  another  variety  of  cases,  where  trusts  are 
sometimes  implied  from  the  words  used,  though  an  express 
trust  is  not  declared,  as  where  property  is  given  to  a  parent  or 
other  person  standing  in  the  relation  of  parent,  and  some  direc- 
tions or  expressions  are  used  in  regard  to  the  maintenance  of 
his  family  or  children.  The  question  to  be  decided  in  this  class 
of  cases  is,  as  in  the  others,  did  the  settlor  intend  to  create  a  trust 
and  impose  an  obligation,  or  did  he  merely  state  incidentally 
the  motive  which  led  to  an  absolute  gift?  ^  (a)     In  the  foUow- 

1  Malim  v.  Keighley,  2  Ves.  Jr.  335;  Knight  v.  Boughton,  11  CI.  &  Fin. 
548;  Warner  v.  Bates,  98  Mass.  277;  Whipple  v.  Adams,  1  Met.  444. 

2  Morice  V.  Bishop  of  Durham,  10  Ves.  536. 

3  Brook  V.  Brook,  3  Sm.  &  Gif.  280;  Paul  v.  Compton,  8  Ves.  380; 
Howorth  V.  Dewell,  29  Beav.  18;  Lines  v.  Darden,  5  Fla.  51. 

*  Bull  V.  Hardy,  1  Ves.  Jr.  270;  Knott  v.  Cottee,  2  Phill.  192;  Knight 
I'.  Knight,  3  Beav.  174;  11  CI.  &  Fin.  513;  Meggison  v.  Moore,  2  Ves.  Jr. 
630;  Hill  v.  Bishop,  &c.,  1  Atk.  618;  Paul  v.  Compton,  8  Ves.  380;  Lefroy 
V.  Flood,  4  Ir.  Ch.  1;  Shepherd  v.  Nottidge,  2  Johns.  &  Hem.  766. 

*  Paisley's  App.,  70  Penn.  St.  158. 

(o)  Whether  the  language  used  stand   upon  its  own   facts.     Thus 

by  the  testator  is  intended  to  be  a  bequest  of  income  to  the  testa- 

an  imperative  direction  as  to  the  tor's  wife  "for  her  use  and  benefit 

use   of   the   property   or   merely   a  and  for  the  maintenance  and  edu- 

statement  of  his  motive  in  making  cation   of   my   children"    has   been 

an    absolute    gift    is    frequently    a  held  to  charge  the  income  with  a 

close  question  which  can  be  deter-  trust     for     the    maintenance    and 

mined   only   from   an   examination  education  of  the  testator's  children, 

of  the  whole  will.     Each  case  must  In  re  Booth,  [1894]  2  Ch.  282.    See 

164 


CHAP.    IV.] 


MAINTENANCE. 


[§  ii: 


ing  cases  a  trust  was  clearly  implied  by  the  court;  where  prop- 
erty was  given,  that  "  he  may  dispose  thereof  for  the  benefit  of 
himself  and  children," '  or, "  for  his  own  use  and  benefit,  and  the 
maintenance  and  education  of  his  children,"  ^  "for  the  mainte- 
nance of  himself  and  family,"^  "for  the  purpose  of  raising, 

*  Raikes  v.  Ward,  1  Hare,  445;  Whiting  v.  ^Tiiting,  4  Gray,  240. 

'  Longman  v.  Elcum,  2  Y.  &  C.  Ch.  369;  Carr  v.  Living,  28  Beav.  644; 
Berry  v.  Briant,  2  Dr.  &  Sm.  1;  Bird  v.  Mayburj",  33  Beav.  351;  Andrews 
V.  Bank  of  Cape  Ann,  3  Allen,  313. 

'  In  re  Robertson's  Trust,  6  W.  R.  405;  Whelan  v.  Reilly,  3  W.  Va. 
597;  Smith  v.  Wildman,  37  Conn.  387. 


also  In  re  G.,  [1899]  1  Ch.  719.  The 
same  has  been  held  true  of  the 
following  language:  "To  use  and 
dispose  of  as  she  may  think  proper 
for  herself  and  my  children." 
Elliott  V.  Elliott,  117  Ind.  380. 
To  the  same  effect  see  Allen  v. 
McGee,  158  Ind.  465;  Hunter  v. 
Hunter,  58  S.  C.  382;  Kidder's 
Ex'rs  V.  Kidder,  56  A.  154  (N.  J. 
Ch.  1903);  Atkinson  v.  Atkinson, 
62  L.  T.  735;  Smnmers  v.  Higley, 
191   III.   193. 

On  the  other  hand,  "I  give  and 
bequeath  to  my  wife  ...  all  my 
estate  ...  for  the  purpose  of  rais- 
ing her  children,  to  have  and  to 
hold  for  her  and  her  heirs  forever," 
has  been  held  not  to  impose  any 
obligation  upon  the  legatee  to  pro- 
vide for  the  support  of  her  children. 
Seamonds  v.  Hodge,  36  W.  Va. 
304.  See  also  Bain  v.  Buff,  76  Va. 
371;  Tyack  v.  Berkeley,  100  Va. 
296.  It  has  also  been  held  that  a 
statement  in  a  will  that  a  bequest, 
absolute  in  form,  was  made  to 
enable  the  legatee  to  provide  for  the 
maintenance  and  education  of  her 
children,  will  not  create  a  trust  for 
the  children,  being  merely  the  state- 
Bient  of  a  motive  for  making  the 


gift.  Randall  v.  Randall,  135  III. 
398.  A  bequest  of  £2500  to  a  son 
"to  assist  him"  in  paying  off  a 
certain  mortgage  encumbrance  on 
land  de\'ised  to  him,  has  been  held 
to  be  an  absolute  bequest.  Adams 
t'.  Lopdell,  25  L.  R.  Ir.  311.  See  also 
Matter  of  Crane,  12  N.  Y.  App. 
Div.  271  (affirmed  159  N.  Y.  557); 
Matter  of  Bogart,  60  N.  Y.  S.  496, 
43  App.  Div.  582. 

A  voluntary  deed  to  a  religious 
corporation,  stated  to  be  "for  the 
porpose  of  aiding  in  the  establish- 
ment of  a  House  for  Indigent  Wid- 
ows or  Orphans  or  in  the  promotion 
of  any  other  charitable  or  religious 
objects,"  has  been  construed  to 
impose  upon  the  corporation  no 
trusts  except  those  upon  which 
all  religious  corporations  hold  prop- 
erty. St.  James  v.  Bagley,  138  N. 
C.  384. 

A  voluntary  deed  to  trustees  of 
a  church,  "on  condition"  that  the 
property  be  devoted  to  certain 
uses  has  been  construed  to  create 
a  trust,  there  being  no  words  of  for- 
feiture or  limitation  over  on  failure 
to  perform  the  "condition."  Mac- 
Kenzie  v.  Trustees,  67  N.  J.  Eq. 
652. 

165 


§  117.]  IMPLIED   TRUSTS.  [CHAP.    IV. 

clothing,  and  educating"  the  children  of  the  legatee/  "at  the 
disposal  of  the  legatee  for  herself  and  her  children,"^  or"  all  over- 
plus towards  her  support  and  her  family,"  ^  or  to  "A.  for  the 
education  and  advancing  in  life  of  her  children."  *  In  Byne  v. 
Blackburn,  it  was  held  that  the  fact  that  the  property  was  given 
to  a  trustee  instead  of  to  the  parent  was  sufficient  to  show  that 
no  sub-trust  was  intended;^  but  this  case  is  in  conflict  with 
other  cases;  ^  and  in  Chase  v.  Chase,  where  property  was  given 
to  trustees  "to  pay  the  income  yearly  to  a  son  for  the  support 
of  himself  and  family  and  the  education  of  his  children,"  it  was 
held  that  the  income  was  taken  in  trust  by  the  son  as  sub-trustee, 
and  that  the  wife  and  children  could  in  equity  enforce  its  ap- 
propriation in  part  for  their  support.^  Where  a  testator  gave  his 

1  Rittgers  v.  Rittgers,  56  Iowa,  218. 

2  Crockett  v.  Crockett,  1  Hare,  451;  2  Phill.  461;  Bibby  v.  Thompson, 
32  Beav.  646. 

'  Woods  V.  Woods,  1  M.  &  Cr.  401. 

<  Gilbert  v.  Bennett,  10  Sim.  371. 

^  Byne  v.  Blackburn,  26  Beav.  41. 

«  Gilbert  v.  Bennett,  10  Sim.  371;  Longman  v.  Elcum,  2  Y.  &  C  Ch. 
363;  Carr  v.  Living,  28  Beav.  644. 

7  Cole  V.  Littlefield,  35  Maine,  435;  Loring  v.  Loring,  100  Mass.  340; 
Wilson  I'.  Bell,  L.  R.  4  Ch.  581;  Whiting  v.  Whiting,  4  Gray,  240;  Chase 
V.  Chase,  2  Allen,  101.  In  this  case  Chief-Justice  Bigelow  said:  "The 
intent  of  the  testator  to  give  the  benefit  of  the  income  of  the  trust  fund 
created  by  his  will  to  the  wife  and  children  of  his  son  Phihp,  as  well  as 
to  his  son,  is  clear  and  unequivocal.  It  was  intended  for  their  joint  sup- 
port, and  for  the  education  of  the  children.  The  only  question  arising 
on  the  construction  of  the  will  is,  whether  the  income  of  the  trust  fund, 
when  received  by  the  son,  is  held  absolutely  by  him  to  be  disposed  of  at 
his  discretion,  or  whether  he  takes  it  in  trust  so  that  the  wife  and  chil- 
dren can  seek  to  enforce  its  due  appropriation,  in  part  for  their  benefit, 
in  a  court  of  equity.  We  cannot  doubt  that  the  latter  is  the  true  con- 
struction; otherwise  it  would  be  in  the  power  of  the  son  to  defeat  the  pur- 
pose of  the  testator,  by  depriving  his  family  of  the  support  and  education 
which  was  expressly  provided  for  by  the  will.  The  adjudicated  cases 
recognize  the  rule  that  where  income  arising  from  property  is  left  to  a 
person  for  the  maintenance  of  children,  he  will  be  entitled  to  receive  it 
for  that  purpose  only  so  long  as  he  continues  properly  to  maintain  them. 
It  can  make  no  difference  in  the  application  of  the  principle,  that  the  per- 
son who  is  to  receive  the  income  also  takes  a  beneficial  interest  in  it  for 
his  own  support.     He  is  not  thereby  authorized  to  appropriate  the  whole 

166 


CHAP,    IV.]  MAINTENANCE.  [§    117. 

wife  the  entire  profit  of  his  estate  for  Hfe,  "intrusting  to  her  the 
education  and  maintenance  of  his  children,"  and  also  providing 
for  the  education  and  maintenance  of  the  children  "  out  of  the 
profits"  of  the  estate,  it  was  held  that  the  widow  was  charged 
with  the  trust  of  educating  and  supporting  the  children ;  ^  and 
where  a  legacy  was  given  to  a  wife  to  be  applied  to  the  mainte- 
nance of  certain  persons  in  such  proportions  and  at  such  times 
as  she  should  think  proper,  it  was  held  to  be  an  imperative 
trust.^  Where  a  testator  gave  to  his  wife  all  his  personal  prop- 
erty for  her  benefit  and  support  and  the  benefit  of  his  son,  it  was 
held  to  be  a  trust  in  the  widow,  the  income  of  one-half  for  her 
own  benefit  and  of  the  other  half  for  the  support  of  the  son.' 

of  it  to  his  own  use,  and  deprive  the  other  beneficiaries  of  the  share  to 
which  they  are  entitled.  Hadow  v.  Hadow,  9  Sim.  438;  Jubber  v.  Jubber, 
id.  503;  Longmore  v.  Elcum,  2  Y.  &  C.  Ch.  363;  Leach  v.  Leach,  13  Sim. 
304;  Hart  v.  Tribe,  19  Beav.  149;  Raikes  v.  Ward,  1  Hare,  445;  Crockett 
V.  Crockett,  2  Phill.  553."    See  Babbitt  v.  Babbitt,  26  N.  J.  Eq.  44. 

^  Lucas  V.  Lockhart,  10  Sim.  &  Mar.  468.  See  also  Hunter  v.  Stem- 
bridge,  12  Ga.  192;  Withers  v.  Yeadon,  1  Rich.  Eq.  324.  [In  re  G.,  [1899] 
1  Ch.  719]. 

2  Hawley  v.  James,  5  Paige,  318 

»  Loring  V.  Loring,  100  Mass.  340;  Jubber  v.  Jubber,  9  S=m.  503.  When 
a  testator  has  stated  the  motive  which  leads  to  the  gift,  the  inquiry  arises 
is  the  motive  or  purpose  of  the  gift  so  stated  that  the  donee  is  under  an 
obUgation  to  apply  the  gift,  or  any  part  of  it,  to  the  benefit  of  another 
person?  There  are  three  classes  of  cases:  (1)  When  a  complete  and  obUga- 
tory  trust  is  created  in  the  first  donee;  as  a  gift  to  A.  "to  dispose  of  among 
her  cliildrcn,"  or  for  bringing  up  her  cliildren,  gives  no  interest  to  A., 
but  creates  a  complete  trust.  Blakeney  v.  Blakeney,  6  Sim.  52;  Pilcher  v. 
Randall,  9  Week.  R.  251;  Taylor  v.  Bacon,  8  Sim.  100;  Chambers  v.  Atkins, 
I  Sim.  &  St.  382;  Fowler  v.  Hunter,  3  Y.  &  Jer.  506;  In  re  Comae's  Trust, 
12  Jur.  470;  Barnes  v.  Grant,  26  L.  J.  Ch.  92;  Jubber  v.  Jubber,  9  Sim. 
503;  Wetherell  v.  Wilson,  1  Keen,  80;  Wilson  v.  Maddison,  2  Y.  &  C.  Ch. 
372;  Re  Harris,  7  Exch.  344;  Whiting  v.  Whiting,  4  Gray,  420;  Chase  v. 
Chase,  2  Allen,  101;  Cole  v.  Littlefield,  35  Maine,  439;  Wright  v.  Miller, 
8  N.  Y.  9.  (2)  There  is  a  large  class  of  cases  where  the  first  donee  has  a 
discretion  to  apply  a  part  or  the  whole  of  the  gift  to  a  third  person.  This 
discretion,  if  exercised  in  good  faith,  will  not  be  interfered  with  by  the 
court,  and  the  property  unapplied  by  the  donee  will  belong  beneficially 
to  him.  Thus  in  Hornby  v.  Gilbert,  Jac.  354,  where  a  gift  was  made  to  A 
to  be  laid  out  and  expended  by  her  at  her  discretion,  for  or  towards  the 
education  of  her  son,  and  that  she  should  not  be  liable  to  account  to  her 

167 


§   117.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

A  trust  for  support  is  not  void  for  uncertainty,  as  the  amount 
required  to  furnish  maintenance  suitable  to  the  station  of  the 
cestui  can  be  ascertained  with  reasonable  certainty.^ 

son  or  any  other  person,  it  was  held  that  the  property  belonged  to  her 
beneficially,  subject  to  a  trust  to  apply  a  part  to  the  education  of  the  son 
during  his  minority.  And  so  where  income  is  given  for  life,  to  be  applied 
to  the  education  and  maintenance  of  cliildren  in  the  discretion  of  the 
donee,  the  income  must  be  paid  to  the  person  named,  and  the  part  unex- 
pended belongs  to  such  person  beneficially.  Gilbert  v.  Bennett,  10  Sim. 
371;  Hadow  v.  Hadow,  9  Sim.  438;  Leach  v.  Leach,  13  Sim.  304;  Brown 
V.  Paul.  1  Sim.  (n.s.)  92;  Bowden  v.  Laing,  14  Sim.  113;  Longmore  v. 
Elcum,  2  Y.  &  C.  Ch.  363.  And  if  the  interest  or  income  of  legacies  to 
the  children  is  given  to  a  parent,  to  be  applied  to  the  maintenance  and 
education  of  the  children,  the  parent  will  take  the  surplus  beneficially  if 
he  performs  his  duty,  unless  a  contrary  intention  is  expressed:  and  provid- 
ing for  other  trustees  in  case  of  the  parent's  death  does  not  indicate  a 
contrary  intention.  Brown  v.  Paul,  1  Sim.  (n.  s.)  103.  Sometimes  the 
gifts  to  a  parent  are  so  expressed  that  the  parent  takes  the  property  in 
trust,  subject  to  a  large  discretion;  and  sometimes  the  parent  takes  the 
property  for  life,  subject  to  a  power  of  appointment  for  the  children.  The 
latter  construction  is  the  more  favored  by  the  courts.  See  Crockett  v. 
Crockett,  2  Phill.  553;  Gully  v.  Cregoe,  24  Beav.  185;  Hart  v.  Tribe,  18 
Beav.  215;  Ware  v.  Mallard,  21  L.  J.  Ch.  355,  16  Jur.  492.  In  Raikes  v. 
Ward,  1  Hare,  445,  a  gift  was  made  to  a  wife  "to  the  intent  she  may  dis- 
pose of  the  same  for  the  benefit  of  herself  and  our  children  as  she  may 
deem  most  advantageous,"  and  the  court  determined  that  the  children 
had  no  absolute  interest,  but  that  their  interests  were  subject  to  her  honest 
discretion.  Connolly  v.  Farrell,  8  Beav.  347;  Woods  v.  Woods,  1  My.  & 
Cr.  401;  Costababie  v.  Costababie,  6  Hare,  410;  Cowman  v.  Harrison,  10 
Hare,  234;  Smith  v.  Smith,  2  Jur.  (n.  s.)  967;  Cooper  v.  Thornton,  3  Bro. 
Ch.  96;  Robinson  v.  Tickell,  8  Ves.  142;  Wood  v.  Richardson,  4  Beav. 
174;  Pratt  v.  Church,  id.  177.  (3)  The  third  class  of  cases  contains  those 
in  which  it  is  held  that  the  primary  donee  is  absolutely  entitled  to  the 
whole  interest  given,  without  any  rights  in  third  persons,  as  in  Brown  v. 
Casamajor,  4  Ves.  498,  where  a  legacy  was  given  to  a  father  "the  better 
to  enable  him  to  provide  for  his  children."  These  and  similar  words 
merely  express  the  motive  of  the  gift,  but  import  or  imply  no  obligation 
or  discretion  which  courts  can  enforce  or  control.  Hammond  v.  Neame, 
1  Swanst.  35;  Benson  v.  Whittam,  5  Sim.  22;  Thorp  v.  Owen,  2  Hare,  607; 
Andrews  v.  Partington,  3  Bro.  Ch.  60.  See  also  Biddies  i'.  Biddies,  16  Sim. 
1;  Berkley  v.  Swinboume,  6  Sim.  613;  Oakes  v.  Strachy,  13  Sim.  414;  Leigh 
V.  Leigh,  12  Jur.  907;   Jones  v.  Greatwood,  16  Beav.  528;  Hart  v.  Tribe, 


»  Johnson  v.  Billupa,  23  W.  Va.  685. 
168 


CHAP.    rV.]  MAINTENANCE.  [§    118. 

§  118.  In  cases  where  a  trust  for  the  maintenance  of  chil- 
dren is  implied,  the  person  bound  by  the  trust  is  regarded  in  the 
same  light  as  the  guardian  of  a  lunatic  or  of  a  minor;  ^  he  is 
entitled  to  receive  the  fund,  and  can  give  a  \alid  receipt  for 
it;^  and,  so  long  as  he  discharges  the  trust  imposed  upon  him, 
he  is  entitled  to  the  surplus  for  his  own  benefit,  nor  is  he  obliged 
to  account  for  the  past  application  of  the  fund.^  And  the  future 
application  is  very  much  according  to  his  discretion,  provided  he 
educates  and  supports  the  children  reasonably,  according  to  their 
position  in  the  world  and  the  intention  of  the  testator,''  The 
court,  in  cases  where  a  question  is  raised,  will  order  payment  to 
be  made  to  him,  with  liberty  to  the  wife  and  children  to  apply 
for  further  orders; '"  if  he  becomes  unfit  to  educate  the  children, 
the  court  can  apportion  the  fund,  and  prevent  him  from  re- 
ceiving the  portion  necessary  for  the  children  and  family ;  ^ 
and  if  he  assigns  his  interest  in  the  fund  the  court  can  appor- 
tion it,  and  set  apart  what  is  needed  for  the  support  and  educa- 
tion of  the  children,  and  give  the  remainder  to  his  assignee/  Of 
course,  if  there  are  no  children,  or  if  they  die,  the  person  bound 
by  the  trust  takes  the  whole  benefit  of  the  fund.^  But  if  the  de- 

18  Beav.  215;  WTieeler  v.  Smith,  1  Giff.  300.  It  may  be  said  that  latterly 
courts  are  not  so  astute  to  discover  and  enforce  trusts  from  precatory 
words,  and  are  more  inclined  to  find  in  the  words  the  mere  statement  of 
a  motive,  or  the  vesting  of  a  discretion  in  the  donee. 

»  Jodrell  V.  Jodrell,  14  Beav.  411. 

2  Woods  V.  Woods,  1  M.  &  Cr.  409;  Raikes  v.  Ward,  1  Hare,  449;  Cooper 
V.  Thornton,  3  Bro.  Ch.  186;  Robinson  v.  Tickell,  8  Ves.  142;  Crockett  v. 
Crockett,  1  Hare,  451;  2  Phill.  553;  Webb  v.  Wools,  2  Sim.  (n.  s.)  272. 

'  Leach  v.  Leach,  13  Sim.  304;  Brown  v.  Paul.  1  Sim.  (n.  s.)  92;  Carr 
V.  Living,  28  Beav.  644;  Hora  v.  Hora,  33  Beav.  88;  Smith  v.  Smith,  11 
Allen,  423;  Berkley  v.  Swinbourne,  6  Sim.  613;  Hadow  v.  Hadow,  9  Sim. 
438. 

*  Raikes  i;.  Ward,  1  Hare,  450. 

"  Hadow  V.  Hadow,  9  Sim.  438;  Crockett  v.  Crockett,  1  Hare,  451. 
«  Chase  t'.  Chase,  2  Allen,  101;  Castle  v.  Castle,  1  De  G.  &  Jon.  352. 
[ZnrcG.  [1899]  1  Ch.  719.] 

7  Chase  I'.  Chase,  2  Allen,  101 ;  Carr.  v.  Living,  2  Beav.  644. 

*  Hammond  v.  Neame,  1  Swanst.  35;  Cape  i'.  Cape,  2  Y.  &  C.  Ex.  543; 
Bushnell  v.  Parsons,  Pr.  Ch.  219;  Bowditch  v.  Andrew,  8  Allen,  339;  Smith 
p.  Smith,  11  Allen,  423. 

169 


§  118.]  IMPLIED    TRUSTS.  [CHAP,    IV. 

visee  die  before  the  children,  the  trust  remains  for  them.^  The 
trust  also  ceases  as  to  children  who  become  forisfamiliated,  or 
cease  to  be  members  of  the  trustee's  family,  and,  by  marriage  or 
otherwise,  become  members  of  another  home  or  establishment; 
for  it  would  not  generally  be  implied  that  a  testator  intended  ^ 
an  income  for  the  support  and  education  of  his  family  to  be 
divided  up  into  as  many  families  as  he  left  children.^  Whether 
a  child's  right  to  maintenance  under  such  a  will  ceases  by  the 
fact  of  his  attaining  twenty-one  years  of  age  is  in  many  cases 
an  open  question.*  On  the  one  side  it  may  be  said  that  the  trust 
ought  not  to  continue  after  the  child  is  of  age,  and  is  educated 
and  prepared  to  acquire  a  livelihood  for  himself.^  On  the  other 
hand,  if  the  child  is  willing  to  remain  at  home,  and  there  is  no 
reasonable  objection  to  his  so  remaining,  or  if  it  is  a  female  with 
no  other  protection  and  means  of  support,  it  would  seem  that  the 
trust  ought  not  to  cease  on  the  mere  ground  that  the  child  has 
attained  twenty-one.®  The  great  majority  of  cases  will,  of 
course,  depend  upon  the  particular  words  used  in  the  particular 
will,  and  they  will  be  so  construed  by  the  court  as  to  carry  out 
the  intentions  of  the  testator.^  If  a  trust  is  to  a  widow  for  life 
for  the  support  of  herself  and  the  support  and  education  of  her 
children,  and  the  property  is  to  go  to  them  absolutely  upon  her 
death,  one  of  them,  on  coming  of  age,  cannot  call  for  his  propor- 
tion, even  with  the  concurrence  of  the  widow,  if  such  transfer 

'  Andrews  v.  Cape  Ann  Bank,  3  Allen,  313. 

2  Bowdoin  v.  Laing,  14  Sim.  113;  Carr.  v.  Living,  28  Beav.  644;  33 
Beav.  464;  Thorp  v.  Owen,  2  Hare,  612;  Longmore  v.  Elcum,  2  Y.  &  C. 
Ch.  370;  Manning  v.  Wopp,  2  Dev.  &  Bat.  Ch.  11;  Smith  v.  Wildman, 
37  Conn.  387;  Gardner  v.  Barker,  2  Eq.  R.  888,  overruhng  Soames  v. 
Martin,  10  Sim.  287;  Bayne  v.  Crowther,  20  Beav.  400;  Brocklebank  i;. 
Johnson,  29  Beav.  211;  Badham  v.  Mee,  1  R.  &  M.  631. 

3  Ibid.;  Baker  v.  Reel,  4  Dana,  158;  ConoUy  v.  Farrell,  8  Beav.  350; 
citing  Camden  v.  Benson,  Crockett  v.  Crockett,  1  Hare,  457;  5  Hare,  326. 

«  Ibid. 

*  McDonnell  v.  Black,  Riley,  Ch.  152. 

«  Ibid.;  Cloud  v.  Martin,  2  Dev.  &  Bat.  Ch.  274;  Carr  v.  Living,  33 
Beav.  464. 

^  Gardner  v.  Barker,  18  Jur.  508;  Bowditch  v.  Andrew,  8  Allen,  339; 
Sargent  v.  Bourne,  6  Met.  32. 

170 


CHAP,    IV.]  MAINTENANCE.  (§    119. 

would  SO  diminish  the  fund  as  to  endanger  the  rights  of  the  other 
children  to  support  and  education  during  the  Hfe  of  the  widow. 
In  such  case  the  court  has  ordered  a  part  of  such  child's  share  to 
be  paid  over  on  his  undertaking  to  account  for  the  income  if 
needed,  and  on  the  footing  that  the  residue  should  be  retained 
for  security,  that  the  income  should  be  paid  over  if  required.' 
The  children  have  such  an  interest  in  the  fund  given  for  their 
maintenance  that  it  cannot  be  reached  by  a  creditor's  bill  or 
trustee  process  against  the  parent  or  other  person  charged  with 
the  obligation  of  maintaining  the  children  or  family ;  that  is,  if 
the  fund  is  given  to  a  person  for  a  particular  purpose,  it  cannot 
be  diverted  from  that  purpose  by  creditors  of  the  donee.^ 

§  119.  But  no  trust  is  implied  where  the  words  simply  state 
the  motive  leading  to  the  gift,  as  where  the  gift  is  to  a  person 
"to  enable  him  to  maintain  the  children,"  ^  or  an  absolute  gift 
is  made,  and  the  motive  stated  "that  he  may  support  himself 
and  children,"  ^  or  a  gift  is  made  absolutely  for  her  own  use  and 
benefit,  "having  full  confidence  in  her  sufficient  and  judicious 
provision  for  the  children."  ^  WTien  a  testator  gave  to  his  wife 
"the  use,  benefit,  and  profits  of  his  real  estate  for  life,  and  all  his 
personal  estate,  absolutely,  having  full  confidence  that  she  will 
leave  the  surplus  to  be  divided  justly  among  my  children,"  it 
was  held  that  the  widow  took  the  personal  estate  absolutely, 
subject  to  no  trust,  and  that  the  w^ord  "  surplus  "  meant  what  was 
left  unconsumed  or  undisposed  of  by  her.^  And  it  may  be  added 

»  Berry  v.  Briant,  2  Dr.  &  Sm.  1. 

»  Bramhall  v.  Ferris,  14  N.  Y.  44;  White  v.  White,  30  Vt.  342;  Rife 
».  Geyer,  59  Pa.  St.  393;  Wells  v.  McCall,  64  Penn.  St.  207;  Chite  v.  Pool, 
8  Paige,  83;  Doswell  v.  Anderson,  I  P.  &  H.  (Va.)  185.  [To  a  similar  effect 
see  Talley  v.  Ferguson,  G4  W.  Va.  328    Brooks  v.  Raynolds,  59  Fed.  923.] 

'  Benson  v.  Wliittam,  5  Sim.  22;  Leach  v.  Leach,  13  Sim.  304;  Burt 
V.  Herron,  66  Penn.  St.  400;  Rhett  v.  Mason,  18  Grat.  541;  Burke  v.  Val- 
entine, 52  Barb.  412.  [Randall  v.  Randall,  135  111.  398;  Bain  v.  Buff,  76 
Va.  371;  Seamonds  v.  Hodge,  36  W.  Va.  304.    See  supra,  §  117,  note  a.] 

*  Thorp  V.  Owen,  2  Hare,  607. 

*  Fox  V.  Fox,  27  Beav.  301;  Sears  v.  Cunningham,  122  Mass.  538; 
Barrett  r.  Marsh,  126  Mass.  213.     [Cheston  v.  Cheston,  89  Md.  465.) 

*  Pemiock's  Estate,  20  Perm.  St.  268,  overruling  the  opinions  in  Coate's 

171 


§   119.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

that  the  mere  expression  of  a  purpose  for  which  a  gift  is  made 
does  not  render  the  purpose  obligatory.  Even  if  the  purpose  of 
the  gift  was  to  benefit  the  donee  solely,  he  can  claim  the  gift 
without  applying  it  to  the  purpose  named,  whether  the  expres- 
sion be  obligatory  in  form  or  not.  Thus  if  a  gift  be  made  to  a 
person  to  purchase  a  ring,^  or  an  annuity,^  or  a  house,^  or  to  set 
him  up  in  business,'*  or  for  his  maintenance  and  education,^  or 
to  bind  him  apprentice,^  or  towards  the  printing  of  a  book,  the 
profits  of  which  to  be  for  his  benefit,^  the  legatee  may  claim  the 
money  without  applying,  or  binding  himself  to  apply,  it  to  the 
purpose  specified,  even  although  there  is  an  express  declaration 
that  he  shall  not  otherwise  receive  the  money.^  These  cases  go 
upon  the  principle  that  a  court  of  equity  will  not  compel  a 
legatee  or  other  party  to  do  what  he  may  undo  the  next  moment; 
for  as  soon  as  such  party  has  received  his  ring,  or  house,  or  an- 
nuity, he  may  sell  it  or  give  up  his  business.^  And  where  money 
is  given  to  trustees,  and  a  discretion  is  given  to  them  how  much 
and  in  what  manner  they  shall  apply  it,  the  cestui  que  trust  has 
no  right  to  more  than  the  trustees  see  fit  to  apply .^"^ 

Appeal,  2  Barr,  129,  and  in  McKonkey's  Appeal,  1  Harris,  253;  cases  upon 
the  same  will  under  other  names.     And  see  Paisley's  App.,  70  Penn.  St. 
158,  where  the  cases  are  discussed;  Willard's  App.,  15  P.  F.  Smith,  265. 
1  Apreece  v.  Apreece,  1  Ves.  &  B.  364. 

*  Dawson  v.  Hearne,  1  R.  &  My.  606;  Ford  v.  Battey,  17  Beav.  303; 
Re  Brown's  Will,  27  Beav.  324;  Yates  v.  Compton,  2  P.  Wms.  38. 

'  Knox  V.  Hotham,  15  Sim.  82.  [See  Adams  v.  Lopdell,  25  L.  R.  Ir. 
311;  Matter  of  Bogart,  60  N.  Y.  S.  496,  43  App.  Div.  582;  Matter  of  Crane, 
12  App.  Div.  (N.  Y.)  271,  affirmed  159  N.  Y.  5.57.] 

*  Gough  V.  Bult,  16  Sim.  45. 

*  Webb  V.  Kelley,  9  Sim.  472;  Young  Husband  v.  Gisborne,  1  Gall. 
400;  Presant  v.  Goodwin,  1  Sm.  &  Tr.  544;  Boyne  v.  Crowther,  20  Beav. 
400;  Twopenny  v.  Peyton,  10  Sim.  487. 

6  Bariow  V.  Grant,  1  Vem.  255;  Nevill  v.  Nevill,  2  Vem.  231;  Wool- 
dredge  V.  Stone,  4  L.  J.  (o.  s.)  Ch.  56;  Burton  v.  Cook,  5  Ves.  461;  Luke 
V.  Kelmorey,  T.  &  R.  207;  Att.  Gen.  v.  Haberdashers'  Co.,  1  My.  &  Keen, 
420;  Lewes  v.  Lewes,  16  Sim.  266;  Noel  v.  Jones,  16  Sim.  309;  Lockhart 
•.  Hardy,  9  Beav.  379;  Lonsdale  v.  Berchtoldt,  3  K.  &  J.  185. 

'  Re  Skinner's  Trusts,  IJ.  &  H.  102. 

8  Stokes  V.  Cheek,  29  L.  J.  Ch.  922. 

»  1  Jarm.  on  Wills,  368  (3d  Lond.  ed.). 

'"  In  re  Sanderson's  Trusts,  3  Kay  &  J.  497;  Beevor  v.  Partridge,  U 
172 


CHAP.    IV.]  AGREEMENTS.  [§    121. 

§  120.  If  a  trust  is  implied,  it  is  governed  in  some  respects 
by  rules  entirely  different  from  the  rules  that  govern  a  direct 
trust.  Generally  in  a  direct  trust  the  trustee  takes  no  beneficial 
interest  in  himself,  but  in  an  implied  trust  the  trustee  may  take 
the  whole  beneficial  interest  for  life,  with  a  right  even  to  expend 
some  part  of  the  principal  fund.  Thus,  where  an  estate  was 
devised  to  A.  and  her  heirs  in  the  fullest  confidence  that  at  her 
decease  she  would  devise  the  property  to  the  heirs  of  the  testa- 
tor, Lord  Eldon  held  that  A.  had  all  the  rights  in  the  estate  of  a 
tenant  for  life,  and  so  it  was  also  held  in  the  House  of  Lords.^ 
But  where  a  testator  devised  an  estate  to  his  wife  and  her  heirs, 
imder  the  firm  conviction  that  she  would  dispose  of  and  manage 
the  same  for  the  benefit  of  her  children,  it  was  held  that  the 
widow  was  not  entitled  to  a  beneficial  interest  as  tenant  for 
life.2 

§  121.  Trusts  sometimes  arise  by  implication  from  the  pro- 
visions of  a  will,  in  order  to  carry  out  the  testator's  intention. 
As  where  a  testator  leaves  property  to  A.  with  the  request  that 
he  shall  leave  it  to  B.,  a  trust  in  favor  of  B.  is  created,  which  is 
not  affected  by  the  death  of  A.  before  the  testator.^  A  direction 
to  continue  the  testator's  business  creates  a  trust.^  So  where  a 
testator  gave  his  wife  an  annuity  of  $1000  a  year,  to  be  paid  her 
by  a  trustee  named,  to  enable  her  to  live  comfortably  and  to 
support  and  educate  her  children,  and  if  in  any  year  said  sum 
were  insufficient,  the  trustee  was  to  pay  her  an  additional  sum 
not  exceeding  $1000.  The  testator  gave  a  few  legacies,  and  then 
gave  the  remainder  of  his  estate  to  his  daughters,  and  gave 
nothing  to  the  trustee  in  words,  but  he  authorized  the  trustee 
to  sell  certain  of  his  real  estate,  and  also  to  sell  the  personal 

Sim.  229;  Rudland  v.  Crozicr,  2  De  G.  &  J.  143;  Cowper  v.  Mantell,  22 
Beav.  231. 

1  Wright  V.  Atkyns,  T.  &  R.  157;  Lawless  v.  Shaw,  Lloyd  &  Goold, 
Sugden,  154;  Shovclton  v.  Shovelton,  32  Beav.  143. 

«  Barnes  v.  Grant,  2  Jur.  (n.  s.)  1127. 

»  Eddy  V.  Hartshore,  34  N.  J.  Eq.  409. 

*  Ferry  v.  Laible.  31  N.  J.  Eq.  566. 

173 


§   121.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

property  not  specifically  devised.  The  personal  property  was 
only  sufficient  to  pay  the  debts  of  the  testator,  and  the  trustee 
had  no  funds  from  which  to  pay  the  annuity  to  the  wife.  It  was 
held  by  the  court  that  the  trustee  took  the  real  estate  in  trust  by 
implication,  that  the  daughters  took  the  remainder  after  the 
trusts  were  executed,  and  that  the  widow  could  enforce  the  pay- 
ment of  the  annuity  by  bill  in  equity  against  the  trustee.^  So  if  a 
testator  direct  his  real  estate  to  be  sold,  or  if  he  charge  it  with 
the  payment  of  debts  or  legacies,  it  may  descend  to  an  heir,  or 
pass  to  a  devisee,  but  the  court  will  consider  the  direction  as  an 
implied  declaration  of  trust,  and  enforce  its  execution  in  the 
hands  of  those  to  whom  it  has  come.^  So  a  condition  annexed 
to  a  devise  which,  being  broken,  might  work  a  forfeiture  of  the 
estate,  has  in  equity  been  construed  into  an  implied  trust,  and 
enforced  as  such;  as  where  a  house  was  devised  to  A.  for  life, 
"he  keeping  the  same  in  repair,"  or  where  an  estate  is  given  to 
one  in  fee,  "he  paying  the  testator's  debts  within  a  year."  ^ 
Sometimes  it  is  very  difficult  to  determine  whether  or  no  a  trust 
ought  to  arise  by  implication,  as  where  there  is  an  absolute  de- 
vise to  C.  and  conjoined  therewith  expressions  indicating  a  trust 
in  E.^  Where  a  testator  gave  his  wife  a  life  estate  and  then  left 
it  to  her  discretion  to  give  such  aid  to  his  relations  as  she  might 
deem  proper  and  just  of  her  own  will,  it  was  held  that  there  was 
no  sufficient  expression  of  desire  to  create  a  trust."    So  where  a 

1  Walker  v.  Whiting,  23  Pick.  313;  Braman  v.  Stiles,  2  Pick  460;  Fay 
V.  Taft,  12  Cush.  448;  Watson  v.  Mayrant,  1  Rich.  Ch.  449;  Baker  v.  Reel, 
4  Dana,  158. 

2  Pitt  V.  Pelham,  2  Freem.  134;  1  Ch.  R.  283;  Locton  v.  Locton,  2 
Freem.  136;  Auby  v.  Doyl,  1  Ch.  Cas.  180;  Tennant  v.  Brown,  id.  180; 
Garfoot  v.  Garfoot,  id.  35;  2  Freem.  176;  Gwilliams  v.  Rowell,  Hard.  204; 
Blatch  V.  Wilder,  1  Atk.  420;  Carvill  v.  Carvill,  2  Ch.  R.  301;  Cook  v. 
Fountain,  3  Swanst.  529;  Bennett  v.  Da\is,  2  P.  Wms.  318;  Wigg  v.  Wigg, 
1  Atk.  382;  Hoxie  v.  Hoxie.  7  Paige,  187;  Withers  v.  Yeadon,  1  Rich.  Ch. 
324;  Mclntire  Poor  School  v.  Zan.  Canal  Co.,  9  Ham.  203. 

3  Wright  V.  Wilkin,  2  B.  &  Sm.  232;  Stanley  t;.  Colt,  5  Wall.  119;  Sohier 
V.  Trinity  Church,  109  Mass.  1;  Re  Skingley,  3  M.  &  Gor.  221;  Gregg  t>- 
Coates,  23  Beav.  33.    x\nd  see  Kingham  v.  Lee,  15  Sim.  396. 

*  Slater  v.  Hurlebut,  146  Mass.  308,  314. 
"  Corby  v.  Corby.  85  Mo.  371. 

174 


CHAP.    IV.]  AGREEMENTS.  [§    122. 

testator  gave  his  estate  to  his  daughter,  saying,  "  I  enjoin  upon 
her  to  make  such  provision  for  my  grandchild  ...  in  such 
manner  and  at  such  times  and  in  such  amounts  as  she  may 
judge  to  be  expedient  and  conducive  to  the  welfare  of  said  grand- 
child, and  her  own  sense  of  justice  and  Christian  duty  shall 
dictate,"  it  was  held  that  there  was  no  trust.^  A  gift  "relying" 
on  the  donee  to  do  so  and  so  creates  no  trust.^  Giving  the  wife 
the  use  or  proceeds  of  property  after  expenses  are  paid,  and 
providing  for  sale  and  distribution  after  her  death,  creates  a 
trust,  and  gives  the  wife  merely  a  life  right  to  the  rents  and 
profits.^  An  executor  is  always  a  trustee  of  the  personalty,  and 
the  jurisdiction  of  equity  courts  over  trusts  gives  them  a  right 
to  construe  wills  whenever  necessary  to  guide  a  trustee.'*  When- 
ever the  duties  imposed  on  the  executors  are  active,  and  render 
possession  of  the  estate  reasonably  necessary,  they  will  be 
deemed  trustees.^  But  merely  calling  an  executor  "trustee"  in 
a  will  which  creates  no  trust  estate  or  duties  will  not  make  him  a 
testamentary  trustee.^ 

§  122.  Again,  courts  of  equity  will  imply  a  trust  from  the 
contracts  of  parties,  although  there  are  no  words  of  trust  in  the 
instrument;  ^  as  if  a  person  for  a  valuable  consideration  agrees 
to  settle  a  particular  estate  upon  another,^  or  if  he  agrees  to 
sell  an  estate  to  another,^  the  settlor  or  vendor  becomes  a  trus- 

^  Lawrence  v.  Cooke,  104  N.  Y.  632;  overruling  same  case  in  32  Hun, 
126. 

2  Willets  V.  Willets,  35  Hun,  401. 

^  Hathaway  v.  Hathaway,  37  Hun,  265. 

*  Wager  v.  Wager,  89  N.  Y.  161.     [See  infra,  §  476  a,  note.) 

*  Ward  V.  Ward,  105  N.  Y.  68. 
«  In  re  Hawley,  104  N.  Y.  250. 

'  Taylor  v.  Pownal,  10  Leigh,  183. 

«  Finch  V.  Winchelsea,  1  P.  Wms.  277;  Freemoult  v.  Dedire,  id.  429; 
Kennedy  v.  Daley,  1  Sch.  &  Lc.  355;  Legard  v.  Hodges,  1  Ves.  Jr.  477; 
3  Bro.  Ch.  531;  4  Bro.  Ch.  421;  Ravenshaw  v.  HolUer,  7  Sim.  3;  Welles- 
ley  V.  Wellesley,  4  M.  &  C.  561;  Momington  v.  Keane,  2  De  G.  &  J.  293; 
Lyster  v.  Burroughs,  1  Dr.  &  W.  149;  Stock  v.  Moyse,  12  Ir.  Ch.  246; 
Lewis  V.  Madocks,  8  Ves.  150;  17  id.  48;  Rowan  v.  Chute,  13  Ir.  Ch.  169; 
Re  McKenna,  13  Ir.  Ch.  239. 

»  Ackland  v.  Gaisford,  3  Madd.  32;  Wilson  v.  Clapham,  1  J.  &  W.  38; 

175 


§  122.] 


IMPLIED    TRUSTS, 


[chap.    IV. 


tee  of  the  fee  for  the  purposes  of  the  settlement,  or  for  the  pur- 
chaser. Ante-nuptial  contracts  in  regulation  of  the  interest 
that  each  shall  have  in  the  property  of  the  other  then  owned  or 
subsequently  to  be  acquired  are  favored,  and  will  be  enforced  by 
imposing  a  trust  on  the  property.^  (a)    A  note  given  by  one  to 

Ferguson  v.  Tadman,  1  Sim.  530;  Foster  v.  Deacon,  3  Madd.  394;  Paine 
V.  Meller,  6  Ves.  349;  Harford  v.  Furrier,  1  Madd.  539;  Stent  v.  Bailis,  2 
P.  Wms.  220;  Mincliin  v.  Nance,  4  Beav.  332;  Robertson  v.  Skelton,  12 
Beav.  200;  Paramore  v.  Greenslade,  1  Sm.  &  Gif.  541;  Revell  v.  Huesey, 
2  B.  &  B.  287;  Spurrier  v.  Hancock,  4  Ves.  667;  White  v.  Nutts,  1  P.  Wms. 
61 ;  Wall.  V.  Bright,  1  J.  &  W.  494;  Tasker  v.  Small,  3  M.  &  Cr.  70;  Pingree 
V.  Coffin,  12  Gray,  288;  Reed  v.  Lukens,  44  Penn.  St.  200;  Canning  v. 
Kensworthy,  21  Ark.  9;  Currie  v.  Wliite,  45  N.  Y.  822;  Wimbish  v.  Mont- 
gomery Mut.  Bldg.  &  Loan  Assoc,  69  Ala.  578;  Ricker  v.  Moore,  77  Maine, 
292;  Goodwin  v.  Rice,  26  Minn.  20;  Randall  r.  Constans,  33  Minn.  329. 

1  Johnston  v.  Spicer,  107  N.  Y.  185.  [Colbert  v.  Rings,  231  111.  404 
Unger  v.  MelUnger,  43  Ind.  App.  524;  ColUns  v.  Bauman,  125  Ky.  846 
Bright  V.  Chapman,  105  Me.  62;  Appleby  v.  Appleby,  100  Minn.  408 
Rieger  v.  Schaible,  81  Neb.  33;  Cole  v.  Society,  64  N.  H.  445;  Birkbeck's 
Estate,  215  Pa.  St.  323  ;  In  re  Dellar's  Estate,  124  N.  W.  278  (Wis. 
1910).     See  also  Finlay  v.  Darling,  [1897]  1  Ch.  719.] 


(a)  If  a  written  proposal,  in  con- 
sideration of  marriage,  to  leave  cer- 
tain defined  real  estate  by  will  is 
accepted,  and  the  marriage  takes 
place  on  the  faith  thereof,  a  convey- 
ance of  that  property  may  be  decreed 
after  the  death  of  the  person  making 
such  proposal,  against  all  who  claim 
under  him  as  volunteers.  Synge  v. 
Synge,  [1894]  1  Q.  B.  466.  See 
Thompson  v.  Tucker-Osborn,  111 
Mich.  470.  If  the  marriage  is  void 
because  the  woman's  first  husband 
proves  to  be  still  living,  the  heirs  of 
the  second  husband,  who  lived  with 
the  woman  as  his  wife  until  his 
death,  cannot  in  equity  obtain  a 
reconveyance  of  property  which 
she  received  under  his  ante-nuptial 
contract.  Ogden  v.  McHugh,  167 
Mass.  276.  A  husband  who  seeks 
to  enforce  against  the  wife  an  ante- 
nuptial agreement  in  his  favor  will 
176 


be  required  to  prove  complete  good 
faith  in  the  making  of  the  contract. 
Graham  v.  Graham,  143  N.  Y.  573; 
Colbert  v.  Rings,  231  111.  404;  Rie- 
ger V.  Schaible,  81  Neb.  33;  Maze's 
Ex'rs  V.  Maze,  99  S.  W.  336  (Ky. 
1907);  Birkbeck's  Estate,  215  Pa. 
St.  323;  In  re  Dellar's  Estate,  124 
N.  W.  278  (Wis.  1910). 

In  Colbert  v.  Rings,  231  III.  404, 
it  was  said  that  "if  no  provision 
is  made  for  the  wife,  or  if  the  pro- 
vision made  for  her  is  disproportion- 
ate to  the  property  of  the  intended 
husband,  taking  into  consideration 
the  rights  given  her  by  the  law  in 
the  property  of  her  husband  in  the 
event  of  his  death  prior  to  her 
death,  then  a  presumption  exists 
that  the  execution  of  the  instru- 
ment was  brought  by  a  de- 
.'-igncd  concealment  on  the  part  of 
the    husband    of    the    amount    of 


CHAP.    IV. 


RELATION    OF    BANK    TO    DEPOSITOR. 


:§  122. 


his  wife  during  coverture  will  be  enforced  as  a  trust,  except  as 
against  creditors.^  In  case  of  a  savings  bank,  where,  after  pay- 
ment of  expenses,  the  entire  fund  and  its  accumulations  go  to 
the  depositors,  the  deposits  are  held  in  trust  for  the  depositors.^ 
Where  money  is  deposited  in  a  commercial  bank,  no  trust  in 
general  arises,  but  only  a  relation  of  debtor  and  creditor;  when, 
however,  the  money  is  paid  into  the  bank  for  a  specified  pur- 
pose other  than  that  of  a  loan  to  the  bank,  a  fiduciary  relation  is 
created,  and  some  cases  go  so  far  as  to  hold  that  after  the  bank 
has  gone  into  insolvency,  money  so  paid  may  be  recovered  from 
the  assignee  in  preference  to  the  general  creditors.^(a)     Where 

1  Templeton  v.  Brown,  86  Tenn.  50. 

2  Johnson  v.  Ward,  2  Brad.  (111.)  261.  [Cogswell  v.  Bank,  59  N.  H.  4S; 
Abbott  V.  Bank,  68  N.  H.  290,  292;  Osborn  v.  Byrne,  43  Conn.  155;  Bun- 
nell V.  Sav.  Society,  38  Conn.  203;  In  re  Newark  Sav.  Inst.,  28  N.  J.  Eq. 
552;  2  Morse,  Banks  &  Banking,  §  617.] 

'  See  Parsons's  edition  of  Morse  on  Banks  &  Banking,  §§  215,  565  c. 


property  owned  bj  him.  In  that 
event  those  claiming  adversely  to 
the  wife  have  the  burden  of  show- 
ing by  the  proof  that  at  the  time 
she  executed  the  agreement  she 
had  full  knowledge  of  the  nature, 
character,  and  value  of  the  intended 
husband's  property,  or  that  the 
circumstances  were  such  that  she 
reasonably  ought  to  have  had  such 
knowledge." 

In  Nance  v.  Nance,  84  Ala.  375, 
an  ante-nuptial  settlement  was 
held  not  voidable  by  creditors,  even 
though  the  husband  was  then  insol- 
vent and  intended  to  defraud  them, 
it  not  being  shown  that  the  wife 
knew  of  his  insolvency  and  fraudu- 
lent intention.  But  see  Flory  v. 
Houck,  186  Penn.  St.  263;  Kcady 
V.  White,  168  111.  76.  Actual  fraud 
is  necessary  to  avoid  such  a  settle- 
ment. Clark  V.  McMahon,  170 
Mass.  91;  Hussey  v.  Castle,  41  Cal. 
239. 

VOL.  I.  — 12 


In  an  article  upon  Irrevocable 
Trusts,  in  11  Jurid.  Rev.  55,  65, 
A.  M.  Hamilton,  Esq.,  says  of  the 
law  of  Scotland:  "Of  the  obligatory 
and  irrevocable  nature  of  an  ante- 
nuptial contract  there  is  no  room  for 
doubt;  but  a  post-nuptial  settlement 
admittedly  is  less  onerous,  and  in 
certain  aspects  is  no  substitute  for 
an  ante-nuptial  contract.  On  this 
account  it  has  been  attempted  to 
treat  such  contracts  as  equivalent 
in  a  question  of  rcvocabihty  to  a 
voluntary  trust.  But  it  may  now 
be  considered  settled  that  while  in  a 
question  with  creditors  it  may  be 
right  to  do  so,  intra  familiam  they 
have  all  the  force  of  ante-nuptial 
contracts.  A  unilateral  deed  may 
be  so  referred  to  in  a  marriage  con- 
tract as  to  become  a  part  of  it." 

(a)  The  relation  between  a  com- 
mercial bank  and  a  depositor  is 
usually  that  of  debtor  and  creditor. 
Unless    by    a    special    arrangement 

177 


§  123.] 


IMPLIED    TRUSTS. 


[chap.  IV. 


the  plaintiff  placed  certain  money  in  the  hands  of  the  intestate 
to  be  repaid  to  him  on  her  death,  only  the  relation  of  debtor  and 
creditor  was  created,  and  the  plaintiff  could  not  be  preferred 
to  other  creditors.^ 


§  123.   A  direction  to  trustees  that  a  certain  person  shall  be 
employed  as  agent  and  manager  for  the  trustees  if  there  should 

See  Peak  v.  EUicott,  30  Kans.  156;  Ellicott  v.  Barnes,  31  Kans.  170. 
And  see  also  on  this  general  subject  Nat'l  Bank  v.  Ellicott,  31  Kans.  173. 
[See  infra,  §  828,  notes.] 

1  Kershaw  v.  Snowden,  36  Ohio  St.  183. 


the  bank  agrees  to  hold  intact  the 
funds  deposited,  it  has  the  right 
to  mix  them  with  other  funds  and 
to  use  them  in  its  business  in  all 
respects  as  its  own  property.  Its 
obligation  is  merely  to  return  a 
like  amount  to  the  depositor.  Cita- 
tions, infra,  this  note. 

The  fact  that  the  depositor  is 
known  to  be  a  trustee  and  deposits 
as  such  or  in  some  other  represen- 
tative capacity  does  not  effect  a 
change  in  this  relation  unless  the 
bank  has  notice  that  a  general 
deposit  is  in  breach  of  the  trust. 
Officer  V.  Officer,  120  Iowa  389;  Paul 
V.  Draper,  158  Mo.  197. 

In  some  States  an  official  having 
the  custody  of  public  funds  is 
forbidden  by  law  to  make  a  general 
deposit  even  as  trustee.  A  bank 
receiving  such  funds  with  knowl- 
edge that  they  are  public  funds, 
and  mixing  them  with  its  general 
funds  or  paying  them  out  in  its 
business,  becomes  liable  as  for  a 
breach  of  trust.  Fogg  v.  Bank,  80 
Miss.  750;  Board  or  Com'rs  v. 
Strawn,  157  Fed.  49;  City  of  Lincohi 
V.  Morrison,  64  Neb.  822;  Hill  v. 
Miles,  83  Ark.  486.  The  same  would 
doubtless  be  true  if  the  terms  of 

178 


a  trust  forbade  the  trustee  to  make 
general  deposits  in  banks,  provided 
the  bank  receiving  the  funds  on 
general  deposit  was  informed  of 
this  hmitation  upon  the  trustee's 
power.  Mere  knowledge  that  he  is 
a  trustee  would  not  be  sufficient 
notice  of  such  a  limitation,  and 
description  of  the  depositor  as 
trustee  does  not  make  his  claim 
against  the  bank  any  different  from 
that  of  any  other  general  depositor. 
Officer  V.  Officer,  120  Iowa,  389; 
Paul  V.  Draper,  158  Mo.  197;  cita- 
tions, infra. 

The  bank  owes  no  duty  to  the 
cestui  except  the  negative  one  of 
not  participating  in  a  breach  of 
trust.  It  must  honor  all  checks 
drawn  by  the  trustee  in  proper 
form  and  is  not  required  to  inquire 
into  the  appUcation  of  the  funds. 
American  Trust  &  Banking  Co. 
V.  Boone,  102  Ga.  202;  National 
Bank  v.  Ins.  Co.  104  U.  S.  54;  Boyle 
V.  No.  Western  Bank,  125  Wis.  498; 
Interstate  Nat.  Bank  v.  Claxton, 
97  Tex.  569;  Manhattan  Bank  v. 
Walker,  130  U.  S.  267;  Duckett 
V.  Mechanics  Bank,  86  Md.  400, 
412;  Gray  v.  Johnson,  3  Eng.  &  Ir. 
App.  Cas.  1;  Penn.  Title,  etc.  Co. 


CHAP.    IV.]  DIRECTION    TO    EMPLOY    AGENT. 


[§  123. 


be  occasion  for  such  services  gives  no  interest  in  the  estate  to 
such  person,  nor  will  any  kind  of  trust  be  imphed  which  equity 


V.  Meyer,  201  Pa.  St.  299;  First 
Nat.  Bank  v.  Valley  State  Bank,  60 
Kan.  621;  Nehawka  Bank  v.  Inger- 
Boll,  2  Neb.  unofficial,  617,  89  N.  W. 
618.  See  also  Cunningham  v.  Bank 
of  Nampa,  13  Idaho,  167,  10  L. 
R.  A.   (n.  s.)  706. 

"The  mere  payment  of  the 
money  to  or  upon  the  check  of 
the  depositor  does  not  constitute 
a  participation  in  an  actual  or  in- 
tended misappropriation  by  the 
fiduciary,  although  his  conduct  or 
course  of  deahng  may  bring  to  the 
notice  of  the  bank  circumstances 
which  would  enable  it  to  know 
that  he  is  violating  his  trust.  Such 
circumstances  do  not  impose  upon 
the  bank  the  duty  or  give  it  the 
right  to  institute  any  inquiry  into 
the  conduct  of  its  customer,  in  order 
to  protect  those  for  whom  the  cus- 
tomer may  hold  the  fund,  but 
between  whom  and  the  bank  there 
is  no  privity."  Interstate  Nat. 
Bank  v.  Claxton,  97  Tex.  569. 

But  the  bank  cannot  accept 
from  the  depositor,  or  appropriate 
without  his  consent,  part  of  the 
trust  account  in  settlement  or  pay- 
ment of  the  depositor's  private 
indebtedness  to  the  bank.  Such 
conduct  would  be  participation  in 
the  breach  of  trust,  and  would  give 
the  cestui  the  right  to  treat  the  bank 
as  trustee  for  the  amount  of  funds 
thus  misappropriated.  Knowledge 
of  the  nature  of  the  funds  is  suffi- 
cient notice  that  the  trustee  has 
no  right  to  use  them  for  the  pay- 
ment of  his  private  debts.  National 
Bank  v.  Ins.  Co.,  104  U.  S.  54;  Am. 
Trust  &  Banking  Co.  v.  Boone,  102 


Ga.  202;  Farmers'  &  Traders'  Bank 
V.  Fidelity  &  Dep.  Co.,  lOS  Ky. 
384;  Jeff  ray  v.  Towar,  63  N.  J.  Y-q. 
530;  Murphy  i'.  Farmers',  etc.  Bank, 
131  Cal.  115;  State  Bank  v.  McCabe, 
135  Mich.  479;  First  Nat.  Bank  v. 
Wakefield,  148  Cal.  558;  Globe 
Sav.  Bank  v.  Nat.  Bank  of  Com- 
merce,  64  Neb.   413. 

Where  the  bank,  though  not 
directly  receiving  the  trust  funds 
or  applying  them  on  an  account 
owed  by  the  trustee  in  a  different 
capacity,  derives  a  benefit  from  a 
misuse  of  the  trust  funds  by  trans- 
ferring them  on  the  order  or  check 
of  the  trustee  to  the  credit  of  an- 
other depositor  whose  account  at 
the  time  was  overdrawn,  whether 
or  not  the  bank  is  a  participant  in 
the  breach  of  trust  depends  upon 
whether  or  not  the  bank  knew  that 
this  use  of  the  funds  was  a  breach 
of  trust.  This  must  necessarily 
be  so  if  the  bank  knew  that  the 
purpose  of  the  transfer  was  to 
reduce  the  amount  of  the  over- 
draft. The  bare  fact  that  this 
benefit  to  the  bank  is  a  result  of  the 
misuse  of  the  funds  is  not  enough. 
Gray  v.  Johnson,  L.  R.  3  H.  L.  1 : 
Manhattan  Bank  v.  Walker,  130 
U.  S.  267.  See  also  Coleman  v. 
Bucks  &  Oxon  Union  Bank,  [1897] 
2  Ch.  243.  If  the  bank  partici- 
pates in  a  misappropriation  of  the 
trust  funds,  the  cestui  has  a  remedy 
directly  against  the  bank.  Mun- 
nerlyn  v.  Augusta  S.  Bank,  88  Ga. 
333;  94  Ga.  356.  The  trustee  also 
may  recover  the  funds,  notwith- 
standing his  own  fraud.  Mansfield 
V.  Wardlow  (Tex.  Civ.  App.  (1906]), 

179 


§  123.] 


IMPLIED    TRUSTS. 


[chap.  IV. 


can  enforce; '  and  so  when  the  trustees  were  recommended  to 
employ  a  receiver.^ 

1  Finden  v.  Stephens,  2  Phill.  142. 

2  Shaw  V.  Lawless,  LI.  &  Goo.,  Sugden,  154;  5  CI.  &  Fin.  129;  LI.  &  Goo., 
Plunket,  559.  In  Tibbits  v.  Tibbits,  19  Ves.  656,  a  testator  made  a  devise 
to  his  son,  recommending  him  to  continue  A.  &  B.  in  the  occupation  of 
their  respective  farms  so  long  as  they  managed  them  well;  and  it  was 
held  to  create  a  trust  for  them.  And  see  Quayle  v.  Davidson,  12  Moore 
P.  C.  268.  In  Hibbert  v.  Hibbert,  3  Mer.  681,  a  testator  directed  that  H. 
should  be  appointed  receiver  of  his  estates  in  Jamaica,  adding  that  he 
intended  the  appointment  to  benefit  H.  in  a  pecuniary  point  of  view; 
and  it  was  held  that  H.  was  entitled  to  be  appointed  agent,  receiver,  and 
consignee  of  said  estates  without  giving  security.  And  so  when  a  testator 
appointed  an  auditor  with  a  remuneration,  it  was  held  that  the  trustees 
could  not  remove  him,  there  being  no  imputation  upon  his  conduct.  Wil- 
liams V.  Corbet,  8  Sim.  349.  The  case  of  Shaw  v.  Lawless  was  a  very 
severely  contested  case.  Mr.  Sugden,  Chancellor  for  Ireland,  was  of 
opinion  that  the  agent  was  entitled  to  the  place;  but  he  was  overruled, 
and  the  conclusion  arrived  at  stated  in  the  text.  From  the  cases  cited  in 
this  note  it  would  appear  that  the  question  is  not  entirely  settled;  or  it 
may  be  that  every  such  provision  must  depend  upon  the -words  and  inten- 
tion of  each  particular  will. 


91  S.   W.   859;  Chaves  v.  Lucero, 
13  N.  M.  368. 

It  has  been  held  in  several  cases 
that  a  bank  is  not  liable  to  the 
beneficial  owner  of  trust  funds 
from  the  mere  fact  that  it  places 
to  the  credit  of  the  trustee's  per- 
sonal account,  funds  which  it  knows 
belong  to  him  as  trustee,  where 
the  depositor  had  no  separate  ac- 
count as  trustee.  Such  a  deposit 
gives  the  bank  no  reason  to  believe 
that  the  trustee  is  acting  or  in- 
tends to  act  dishonestly.  Batch- 
elder  V.  Central  Nat.  Bank,  188 
Mass.  25;  Safe  Dep.  &  Tr.  Co.  v. 
Bank,  194  Pa.  St.  334;  Coleman  v. 
Bucks  &  Oxon  Union  Bank,  [1897] 
2  Ch.  243.  But  see  Duckett  v. 
Mechanics'  Bank,  86  Md.  400; 
BarroU  v.  Forman,  88  Md.  188, 
201.  But  it  would  usually  be 
180 


otherwise  if  he  has  an  account  as 
trustee.  Am.  Bonding  Co.  v. 
Mechanics'  Bank,  97  Md.  598; 
Batchelder  v.  Central  Nat.  Bank.  188 
Mass.  25  (semble);  Coleman  v. 
Bucks  &  Oxon  Union  Bank,  [1897] 
2  Ch.  243  (semble)  ;  Havana  Cent. 
R.  Co.  V.  Knickerbocker  Tr.  Co., 
119  N.  Y.  S.  1035  (App.  Div.). 

When  funds  held  in  trust  are 
deposited  to  the  individual  accovmt 
of  the  trustee  and  the  bank  has  no 
notice  of  the  trust  nature  of  the 
funds,  the  weight  of  authority  holds 
that  the  hen  of  the  bank  attaches  to 
them  and  that  the  bank  has  the  right 
to  appropriate  the  funds  to  the  pay- 
ment of  any  debt  owed  to  it  by  the 
depositor.  Thomson  v.  Clydesdale 
Bank,  [1893]  A.  C.  282,  69  L.  T. 
156;  Union  Bank  v.  Murray-Ayns- 
ley,  [1898]  A.  C.  693;  London,  etc. 


CHAP.  IV.] 


SAFE-DEPOSIT    COMPANIES. 


[§  123. 


Bank  v.  Hanover  Bank,  36  N.  Y. 
App.  Div.  487;  Meyers  v.  N.  Y. 
County  Bank,  36  N.  Y.  App.  Div. 
482;  Smith  v.  Dea  Moines  Nat. 
Bank,  107  Iowa,  620;  Spaulding  v. 
Kendrick,  172  Mass.  71;  School 
District  v.  First  Nat.  Bank,  102 
Mass.  174;  1  Morse,  Banks  & 
Banking  (4th  ed.)  §  326  (16);  see 
also  Rej'nes  v.  Dumont,  130  U.  S. 
354.  But  see  Knight  v.  Fisher, 
58  Fed.  991;  Boyle  v.  No.  Western 
Bank,  125  Wis.  498;  Hatch  v. 
National  Bank,   147  N.  Y.   184. 

When  a  note  or  draft  is  sent  to 
a  bank  for  collection,  the  paper 
itself  is  held  in  trust  by  the  bank; 
but  the  best  opinion  is  that 
the  moment  the  bank  receives  the 
proceeds  of  the  note  or  draft,  the 
relation  of  trust  is  changed  to  that 
of  debtor  and  creditor  if  the  bank 
is  then  solvent,  for  the  reason  that 
the  presumed  understanding  of 
the  parties  is  that  the  bank  shall 


be  allowed  to  mix  the  proceeds  with 
its  other  funds.  Freeman's  Bank 
V.  Nat.  Tube  Co.,  151  Mass.  413, 
418;  Hallam  t;.  Tillinghaet,  19 
Wash.  20,  27;  Bruner  t^.  Bank,  97 
Tenn.  540;  Akin  t;.  Jones,  93  Tenn. 
353;  Morse,  Banks  &  Banking 
(4th  ed.)  §  185;  9  Harvard  Law 
Rev.  428;  12  Harv.  Law  Rev.  572. 
See  contra,  State  v.  Bank  of  Com- 
merce, 54  Neb.  725;  McLeod  v. 
Evans,  66  Wis.  401  (overruled  on 
another  point). 

The  relation  of  safe-deposit  com- 
panies to  those  who  hire  boxes  and 
have  keys  thereto  is  not  one  of 
trustee  and  cestui.  Roberts  v. 
Stuyvesant  Safety  Dep.  Co.,  123 
N.  Y.  57.  Property  so  deposited 
cannot  be  reached  by  trustee  process, 
but  equity  will  give  the  necessary 
assistance  to  enable  a  creditor  to 
reach  it  by  direct  attachment.  See 
9  Harvard  Law  Rev.  131,  135. 


181 


§  124.]  RESULTING    TRUSTS.  [CHAP.  V. 


CHAPTER  V. 

RESULTING    TRUSTS. 

§  124.     Creation  and  character  of  a  resulting  trust. 

§  125.     Divisions  of  this  kind  of  trust. 

§  126.  Resulting  trust  where  the  purchase-money  is  paid  by  one, 

and  deed  is  taken  to  another.     See  §  142. 

§  127.  Resulting  trust  where  trust  funds  are  used  to  purchase  prop- 

erty, and  title  taken  in  the  name  of  another. 

§  128.     In  what  cases  a  trust  results,  and  when  a  trust  does  not  result. 
See  §§  143,  156,  160. 

§  129.  When  a  person  uses  his  fiduciary  relation  to  obtain  an  interest 

in,  or  affecting  the  trust  property. 

§  130.  Same  rules  apply  to  personal  property  unless  it  is  of  a  per- 

ishable nature. 

§  131.  Where  a  resulting  trust  will  not  be  permitted  as  against  law. 

§  132.     Rules  as  to  a  resulting  trust. 
§§  133,  134.     Time  and  circumstances  in  the  creation  of  a  resulting  trust. 

§  135.     Parol  evidence  as  to  a  purchase  by  an  agent  not  admissible. 

§  136.  No  resulting  trust  in  a  joint  purchase. 

§§  137,  138.     Resulting  trusts  may  be  estabhshed  by  parol. 

§  139.  May  be  disproved  by  parol  —  the  burden  of  proof. 

§  140.  Cannot  be  changed  by  parol  after  they  arise. 

§  141.     Will  not  be  enforced  after  a  great  lapse  of  time. 

§  142.     Resulting  trusts  under  the  statutes  of  New  York  and  other  States. 

§  143.     A  resulting  trust  does  not  arise  if  the  title  is  taken  in  the  name  of 
wife  or  child. 

§  144.  What  persons  it  embraces. 

§  145.  Doubts  and  overruled  cases. 

§  146.  When  it  will  be  presumed  to  be  an  advancement. 

§  147.  The  presumption  may  be  rebutted. 

§  148.  Is  rebutted  by  fraud  in  the  wife  or  child. 

§  149.  Creditors  may  avoid  such  advancements.    When  and  how. 

§  150.     A  resulting  trust  from  the  conveyance  of  the  legal  title  without 
the  beneficial  interest. 

§  151.  Every  case  must  depend  upon  its  particular  writing  and 

circumstances. 

§  152.  Instances  and  illustrations. 

§§  153,  154.     If  there  is  an  intention  to  benefit  the  donee,  there  is  no 
resulting  trust. 

182 


CHAP,    v.]         PURCHASE   WITH    ANOTHER'S   MONEY.  [§    124. 

§  155.     Gifts  to  cxocutora  may  create  resulting  trusts. 

§  156.     Resulting  trusts  do  not  arise  upon  gifts  to  charitable  uses. 

§  157.     A  gift  upon  trust  or  to  a  trustee  and  no  trust  declared. 

§  158.     Always  a  matter  of  intention  to  be  gathered  from  the  whole 
instrument. 

§  159.  Where  a  special  trust  fails  it  will  result. 

§  160.  Where  a  special  trust  fails  from  illegality  or  lapses,  it  results. 

§  160  a.  To  whom  it  results. 

§§  161,  162.     Whether  a  trust  results  from  a  voluntary  conveyance  with- 
out consideration. 

§  163.  Equity  does  not  favor  such  conveyances;  they  may  be  void 

for  fraud,  but  no  trust  results. 

§  164.  Voluntary  conveyances  to  wife  or  child. 

§  165.     No  trust  results  from  a  fraudulent  transaction. 

§  165  a.     How  a  resulting  trust  is  executed. 

§  124.  It  has  been  seen  from  the  preceding  chapters  that 
trusts  are  created  by  the  express  dispositions  of  parties,  or 
they  are  implied  by  courts  from  the  words  used  in  such  ex- 
press dispositions.  There  is  another  class  of  trusts  which  re- 
sult in  law  from  the  acts  of  parties,  whether  they  intended  to 
create  a  trust  or  not,  and  they  are  aptly  designated  as  result- 
ing trusts.  They  are  sometimes  called  presumptive  trusts, 
because  the  law  presumes  them  to  be  intended  by  the  parties 
from  the  nature  and  character  of  their  transactions  with  each 
other,  although  the  general  foundation  of  this  kind  of  trusts  is 
the  natural  equity  that  arises  when  parties  do  certain  things. 
Thus,  if  one  pays  the  purchase-money  of  an  estate,  and  takes  the 
title-deed  in  the  name  of  another,  in  the  absence  of  all  evidence 
of  intention,  the  law  presumes  a  trust,  from  the  natural  equity 
that  he  who  pays  the  money  for  property  ought  to  enjoy  the 
beneficial  interest.  The  statute  of  frauds  does  not  affect  the 
creation  of  these  trusts,  for  the  reason  that,  where  there  is  no 
evidence  of  intention,  it  could  not  be  expected  that  a  declaration 
of  intention  in  writing,  properly  signed,  would  be  made  or  could 
be  produced,  (a) 

(a)  Nor    will    proof    of    a    parol  nize  prevent  a  trust  from  resulting 

trust  which  is  unenforceable  because  unless  the  agreement  has  the  effect 

of  the  statute  of  frauds  and  which  of  showing    that    the    intention  of 

the  title  holder  declines  to  recog-  the  purchaser  w^aa   that    the  bene- 

183 


§   125.]  RESULTING    TRUSTS.  [cHAP.  V. 

§  125.  Lord  Chancellor  Hardwicke  said  that  a  resulting  trust 
arising  by  operation  of  law  existed:  (1)  when  an  estate  was 
purchased  in  the  name  of  one  person  and  the  consideration  came 
from  another;  (2)  when  a  trust  was  declared  only  as  to  part 
and  nothing  was  said  as  to  the  residue,  that  residue  remaining 
undisposed  of,  remained  to  the  heir-at-law;  and  he  observed  that 
he  did  not  know  of  any  other  instances,  unless  in  case  of  fraud. ^ 
In  this  chapter  resulting  trusts  will  be  examined  under  five 
heads;  (1)  when  the  purchaser  of  an  estate  pays  the  purchase 
money  and  takes  the  title  in  the  name  of  a  third  person;  (2) 
where  a  person  standing  in  a  fiduciary  relation  uses  fiduciary 
funds  to  purchase  property,  and  takes  the  title  in  his  own  name; 
(3)  where  an  estate  is  conveyed  upon  trusts,  which  fail,  or  are 
not  declared,  or  are  illegal;  (4)  when  the  legal  title  to  property 
is  conveyed,  and  there  is  no  reason  to  infer  that  it  was  the 

1  Lloyd  V.  Spillett,  2  Atk.  150.  In  2  Lomax,  Dig.  200,  resulting  trusts 
are  considered  under  the  name  of  implied  trusts,  as  arising:  (1)  out  of  the 
equitable  conversion  of  land  into  money  or  money  into  land;  (2)  where  an 
estate  is  purchased  in  the  name  of  one  person  and  the  consideration  is 
paid  by  another;  (3)  where  there  is  a  conveyance  of  land  without  any 
consideration  or  declaration  of  uses;  (4)  where  a  conveyance  of  land  is 
made  in  trust  as  to  part  and  the  conveyance  is  silent  as  to  the  residue; 
(5)  where  a  conveyance  is  made  upon  such  trusts  as  shall  be  appointed, 
and  there  is  default  of  appointment ;  (6)  where  a  conveyance  is  made  upon 
particular  trusts  which  fail  of  taking  effect;  (7)  where  a  purchase  is  made 
by  a  trustee  with  trust-money;  (8)  where  a  purchase  of  real  estate  is  made 
by  a  partner  in  his  own  name  with  partnership  funds;  (9)  where  a  renewal 
of  a  lease  is  obtained  by  a  trustee  or  other  person  standing  in  a  fiduciary 
relation;  (10)  where  purchases  are  made  of  outstanding  claims  upon  an 
estate  by  trustees  or  some  of  the  tenants  thereof  connected  by  privity  of 
estate  with  others  having  an  interest  therein;  (11)  where  fraud  has  been 
committed  in  obtaining  the  conveyance;  (12)  where  a  purchase  has  been 
made  without  a  satisfaction  of  the  purchase-money  to  the  vendor;  (13) 
where  a  joint  purchase  has  been  made  by  several,  and  payments  of  the 
purchase-money  to  the  vendor  have  been  made  bej'ond  their  proportion. 

ficial   interest    should    pass    to  the  the    express    parol    trust    which    is 

grantee  of  the  legal  title;  and  the  void    under   the   statute   of   frauds 

fact    that    the    enforcement    of    a  is  no  objection.     Long  v.  Mechem, 

resulting  trust  amounts  to  substan-  142    Ala.    405;    Linnel    v.    Hudson, 

tially  the  same  thing  as  enforcing  59  S.   C.   283. 

184 


CHAP,  v.]  PURCHASE    WITH    ANOTHER'S    MONEY.  [§  126. 

intention  to  convey  the  beneficial  interest;  and  (5)  where  vol- 
untary conveyances  are  made,  or  conveyances  without  consid- 
eration. 

§  126.  Where,  upon  a  purchase  of  property,  the  conveyance 
of  the  legal  title  is  taken  in  the  name  of  one  person,  while  the 
consideration  or  a  part  of  it  is  given  or  paid  by  another,  not  in 
the  way  of  a  loan  to  the  grantee,  the  parties  being  strangers  to 
each  other,  a  resulting  trust  immediately  arises  from  the  trans- 
action (unless  it  would  be  enforcing  a  fraud  to  raise  a  resulting 
trust  ^),  and  the  person  named  in  the  conveyance  will  be  a  trustee 
for  the  party  from  whom  the  consideration  proceeds.^  (a)    In  a 

»  Almond  v.  Wilson,  75  Va.  626.  [See  Keely  i;.  Gregg,  33  Mont.  216, 
225;  Deny  v.  Fielder,  216  Mo.  177.] 

2  Willis  V.  WilUs,  2  Atk.  71;  Lloyd  v.  Spillett,  2  Atk.  150;  Rider  v.  Kid- 
der, 10  Ves.  360;  Ex  parte  Houghton,  17  Ves.  253;  Trench  v.  Harrison, 
17  Sim.  Ill;  Redington  v.  Redington,  3  Ridg.  177;  Crop  v.  Norton,  9  Mod. 
235;  Bam.  184;  2  Atk.  75;  Hungate  v.  Hungate,  Toth.  120;  Ex  parte  Ver- 
non, 2  P.  Wms.  549;  Ambrose  v.  Ambrose,  1  id.  321;  Woodman  v.  Morrel, 
2  Freem.  33,  123;  Murless  v.  Franklin,  1  Swanst.  17;  Finch  i;.  Finch,  15 
Ves.  50;  Grey  v.  Grey,  2  Swanst.  597;  Finch,  340;  Groves  v.  Groves,  3 
Y.  &  J.  170;  Lade  v.  Lade,  1  Wils.  21;  May  v.  Steele,  2  V.  &  B.  390;  Lever 
V.  Andrews,  7  Bro.  P.  C.  288;  Felly  v.  Maddin,  21  Vin.  Ab.  498;  Smith  t;. 
Camelford,  2  Ves.  Jr.  712;  Anon.  2  Vent.  361;  Withers  t;.  Withers,  Amb. 
151;  Prankerd  v.  Prankerd,  1  S.  &  S.  1;  Howe  v.  Howe,  1  Vem.  415;  Clarke 
V.  Danvers,  1  Ch.  Gas.  310;  Goodright  v.  Hodges,  1  Watk.  Cop.  227;  Lofft, 
230;  Smith  v.  Baker,  1  Atk.  385;  Bartlett  v.  Pickersgill,  1  Eden,  515;  Roth- 
well  V.  Dcwees,  2  Black.  613;  Buck  v.  Pike,  11  Maine,  9;  Baker  v.  Vining, 
30  id.  126;  Kelley  v.  Jcnness,  50  id.  455;  Page  v.  Page,  8  N.  H.  187;  Hall 
V.  Young,  37  id.  134;  Pembroke  v.  Allenstown,  21  id.  107;  Tebbetts  v. 
Tilton,  31  id  283;  Dow  v.  Jewell,  18  id.  340;  Tyford  v.  Thurston,  16  id. 
399;  Hopkinson  v.  Dumas,  42  id.  296;  Hall  v.  Congdon,  56  id.  270;  Pinney 

(a)  Where  upon  purchase  by  a  mistake.     In  re  Spencer,  128  Fed. 

trustee  by  way  of  investment  title  654.   Where  one  furnishes  the  entire 

was   by   mistake    conveyed   to   the  consideration  and  takes  title  in  the 

cestui  it  was  held  that  a  trust  resulted  names   of   himself   and    another,    a 

in  favor  of  the  trustee,  who  in  turn  trust  will  result  as  to  the  moiety 

held  in  trust  for  the  cestui.     The  of  the  legal  title  held  by  the  other 

express   trust   was   not   terminated  unless  a  different  intention  is  shown, 

by  the  conveyance  of  the  legal  title  Ward  v.  Ward,  59  Conn.  188. 
to  the  cestui,  since  it  happened  by 

185 


§  126.]  RESULTING   TRUSTS.  [CHAP.  V. 

Minnesota  case  the  court  said  that  no  resulting  trust  arose  where 
land  was  bought  by  A.  in  the  name  of  B.,  and  B.  sold  the  prop- 

V.  Fellows,  15  Vt.  525;  Dewey  v.  Long,  25  id.  564;  Clark  v.  Clark,  43  id. 
685;  Peabody  v.  Tarbell,  2  Cush.  232;  Livermore  v.  Aldrich,  5  id.  435; 
Root  V.  Blake,  14  Pick.  271;  McGowan  v.  McGowan,  14  Gray,  121;  Kendall 
V.  Mann,  11  Allen,  15;  Powell  v.  Monson  &  Brimfield  Manuf.  Co.,  3  Mason, 
362;  Hoxie  v.  Carr,  1  Sumn.  187;  Dean  v.  Dean,  6  Conn.  285;  Jackson  v. 
Sternberg,  1  Johns.  Cas.  153;  1  Johns.  45;  Jackson  v.  Matsdorf,  11  id.  91; 
Boyd  V.  McLean,  1  Johns.  Ch.  582;  Botsford  v.  Burr,  id.  408;  Steere  v. 
Steere,  5  id.  1;  White  v.  Carpenter,  2  Paige,  218;  Kellogg  v.  Wood,  4  id. 
579;  Foote  v.  Colvin,  3  Johns.  218;  Jackson  v.  Morse,  16  id.  197;  Guthrie 
V.  Gardner,  19  Wend.  414;  Forsyth  v.  Clark,  3  id.  638;  Partridge  v.  Havens, 
10  Paige,  618;  Jackson  v.  Mills,  13  Johns.  463;  Lounsbury  v.  Purdy,  16 
Barb.  376;  Jackson  v.  Woods,  1  Johns.  Cas.  163;  Gomez  v.  Tradesman's 
Bank,  4  Sandf.  S.  C.  106;  Hempstead  v.  Hempstead,  2  Wend.  109;  Hopk. 
288;  Harder  v.  Harder,  2  Sand.  Ch.  17;  Brown  v.  Cheney,  59  Barb.  628; 
Union  College  v.  Wheeler,  59  Barb.  585;  McCartney  v.  Bostwick,  32  N.  Y. 
53;  Depeyster  v.  Gould,  2  Green,  Ch.  480;  Howell  v.  Howell,  15  N.  J.  Eq. 
75;  Stratton  v.  Dialogue,  16  id.  70;  Johnson  v.  Dougherty,  18  id.  406;  Stev- 
ens V.  Wilson,  18  id.  447;  Cutler  v.  Tuttle,  19  id.  558;  Stewart  v.  Brown,  2 
Ser.  &  R.  461;  Jackman  v.  Ringland,  4  Watts  &  S.  149;  Strimpfler  v.  Rob- 
erts, 18  Penn.  St.  283;  Edwards  v.  Edwards,  39  id.  369;  Harrold  v.  Lane, 
55  id.  268;  Nixon's  App.,  63  id.  279;  Wallace  v.  Duffield,  2  Serg.  &  R.  521; 
Lloyd  V.  Carter,  5  Harris,  216;  Beck  v.  Graybill,  4  Casey,  66;  Kisler  v.  Kisler, 
2  Watts,  323;  Lynch  v.  Cox,  11  Harris,  265;  Newells  v.  Morgan,  2  Harr. 
225;  Hollis  v.  Hollis,  1  Md.  Ch.  479;  Dorsey  v.  Clarke,  4  Har.  &  J.  551; 
Glenn  v.  Randall,  2  Md.  Ch.  221;  Farringer  v.  Ramsey,  2  Md.  365;  Cecil 
Bank  v.  Snively,  23  Md.  253;  Neal  v.  Haythrop,  3  Bland,  551;  Bank  of 
U.  S.  V.  Carrington,  7  Leigh,  566;  Henderson  v.  Hoke,  1  Dev.  &  Bat.  Eq. 
119;  McGuire  v.  McGowen,  4  Des.  491;  Dillard  v.  Crocker,  Speers's  Eq. 
20;  Williams  v.  HoUingsworth,  1  Strob.  Eq.  103;  Garrett  v.  Garrett,  1 
Strob.  Eq.  96;  Kirkpatrick  v.  Davidson,  2  Kelly,  297;  TaUaferro  v.  Talia- 
ferro, 6  Ala.  404;  Foster  v.  Trustees  of  the  Athenseum,  3  Ala.  302;  Caple  v. 
McCollum,  27  Ala.  461;  Anderson  v.  Jones,  10  Ala.  401;  Mahomer  v. 
Harrison,  13  Sm.  &  M.  65;  Walker  v.  Bumgood,  id.  764;  Powell  v.  Powell, 
1  Freem.  Ch.  134;  Leiper  v.  Hoffman,  26  Miss.  615;  Runnells  v.  Jackson, 

1  How.  (Miss.)  3.58;  Har\'ey  v.  Ledbetter,  48  Miss.  95;  McCarroU  v.  Alex- 
ander, 48  Miss.  128;  Hall  v.  Sprigg,  7  Mar.  (La.)  243;  Gaines  v.  Chew,  2 
How.  619;  McDonough  Ex'rs  v.  Murdock,  15  How.  367;  Tarpley  v.  Poaze, 

2  Tex.  139;  Long  v.  Steiger,  8  Tex.  460;  Oberthier  v.  Strand,  33  Tex.  522; 
McGuire  v.  Ramsey,  4  Eng.  519;  Ensley  v.  Ballentine,  4  Humph.  233; 
Thomas  v.  Walker,  5  Humph.  93;  Smitheal  v.  Gray,  1  Humph.  491;  Click  v. 
Click,  1  Heisk.  607;  Gass  v.  Gass,  id.  613;  Harris  v.  Union  Bank,  1  Cold. 
152;  Perry  v.  Head,  1  A.  K.  Marsh  47;  Chaplin  v.  McAfee,  3  J.  J.  Marsh. 
513;  Letcher  v.  Letcher,  4  id.  592;  Doyle  v.  Sleeper,  1  Dana,  536;  Stark  v. 

186 


CHAP,  v.]    PURCHASE  WITH  ANOTHER'S  MONEY.      [§  126. 

erty  in  violation  of  his  verbal  promise  to  transfer  to  A.,  re- 
marking that  a  resulting  trust  could  arise  only  on  a  conveyance 
of  land,  not  on  a  promise  to  convey.  This  is  clearly  too  narrow 
a  meaning  to  give  the  law,  and  the  decision  on  the  facts  did  not 
require  it,  as  the  court  allowed  A.  to  recover  from  B.  the  pur- 

Canady,  3  Litt.  399;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Williams  v. 
Van  Tuyl,  2  id.  336;  McGovem  v.  Knox,  21  id.  551;  Elliott  v.  Armstrong, 
2  Blackf.  198;  Jennison  v.  Graves,  id.  444;  Rhodes  v.  Green,  36  Ind.  11; 
Milliken  v.  Ham,  id.  166;  Church  v.  Cole,  id.  35;  Hampson  v.  Fall,  64  id. 
382;  Smith  v.  Sackett,  5  Gilm.  534;  Prevo  v.  Walters,  4  Scam.  33;  Bruce 
V.  Roney,  18  111.  67;  Seaman  v.  Cook,  14  id.  501;  Williams  v.  Brown,  id. 
200;  Nickols  v.  Thornton,  16  id.  113;  Latham  v.  Henderson,  47  id.  185; 
Rankin  v.  Harper,  23  Mo.  579;  Paul  v.  Chouteau,  14  Mo.  580;  Kelly  v. 
Johnson,  28  id.  249;  Baumgartner  v.  Guessfeld,  38  id.  36;  Johnson  v. 
Quarles,  46  id.  423;  Russell  v.  Lode,  1  Iowa,  566;  McLennan  v.  SulHvan, 
13  id.  521;  Tinsley  v.  Tinsley,  52  id.  14;  Ragan  v.  Walker,  1  Wis.  527; 
Irvine  v.  Marshall,  7  Minn.  286;  Millard  v.  Hathaway,  27  Cal.  119;  Baylea 
V.  Baxter,  22  Cal.  575;  Case  v.  Codding,  38  id.  191;  Wilson  v.  Castro,  31 
id.  420;  Jenkins  v.  Frink,  30  id.  586;  Settembre  v.  Putnam,  30  id.  490; 
Frederick  v.  Haas,  5  Nev.  386;  Philips  v.  Crammond,  2  Wash.  C.  C.  441; 
Harden  v.  Darwin  &  Pulley,  66  Ala.  55;  Lewis  v.  Building  &  Loan  Assoc, 
70  id.  276;  Rose  v.  Gibson,  71  id.  35;  Shelby  v.  Tardy,  84  id.  327;  Shelton 
V.  A.  &  T.  Co.,  82  id.  315;  Barroilhet  v.  Anspacher,  68  Cal.  116;  Murphy 
t;.  Peabody,  63  Ga.  522;  Cottle  v.  Harrold,  72  id.  830;  McNamara  v.  Gar- 
rity,  106  111.  384;  Springer  v.  Springer,  114  id.  550;  Harris  v.  Mclntyre, 
118  id.  275;  Donlin  v.  Bradley,  119  id.  420;  Bush  v.  Stanley,  122  id.  406; 
Cooper  V.  Cockrum,  87  Ind.  443;  Boyer  v.  Libey,  88  id.  235;  Witts  v.  Homey, 
59  Md.  584;  Forrester  v.  Moore,  77  Mo.  651;  Bear  v.  Koenigstein,  16  Neb. 
65;  Gogherty  v.  Bennett,  37  N.  J.  Eq.  87;  Syckle  v.  Kline,  34  id.  332; 
Ramage  v.  Ramage,  27  S.  C.  39;  Sexton  v.  Hollis,  26  S.  C.  231 ;  Richardson 
V.  Mounce,  19  id.  477;  Ex  par^e  Trenholm,  id.  126,  —  an  interesting  case 
because  of  the  decision  that  money  drawn  from  a  fund  belonging  to  A. 
and  B.  together  was  to  be  considered  as  taken  from  the  j)art  that  belonged 
to  A.,  and  no  trust  should  result  to  B.  in  the  land  bought  bj'  the  check, 
it  appearing  that  on  settlement  of  all  the  accounts  B.  was  indebted  to  A.; 
Laws  V.  Law,  76  Va.  527;  see  also  Murray  v.  Sell,  23  W.  Va.  473;  Heiskell 
V.  Powell,  23  W.  Va.  717.  The  rule  applies  where  money  is  advanced  to 
enable  a  former  owner  to  redeem  from  a  tax  sale.  Eames  v.  Hardin,  111 
111.  645.  [Champlin  v.  Champlin,  136  111.  309;  Summers  v.  Moore,  113 
N.  C.  394;  Taylor  v.  Miles,  19  Or.  550,  553;  Barger  r.  Barger,  30  Or.  268; 
Walston  I'.  Smith,  70  Vt.  19;  Beloate  r.  Hennessee,  81  Ark.  478;  Long  v. 
Mechem,  142  Ala.  405;  C.  B.  &  Q.  R.  Co.  v.  First  Nat.  Bank,  58  Neb. 
548;  Hickson  v.  Culbert,  19  S.  D.  207.  See  Marie  M.  E.  Church  i-.  Trinity 
Church.  205  111.  601.] 

187 


§   126.]  RESULTING    TRUSTS.  [cHAP.  V. 

chase-money  as  benefit  received  by  B.  voluntarily  from  A.  ^  The 
burden  is  of  course  upon  the  one  claiming  the  existence  of  the 
trust  to  establish  the  facts  upon  which  it  rests  by  clear  and 
satisfactory  evidence.^  In  New  York  and  Wisconsin  there  are 
statute  provisions  that  an  absolute  deed  made  with  consent  of 
the  one  who  pays  the  purchase-money  shall  vest  the  title  in  the 
grantee^  against  the  person  paying  the  money;  ■*  (o)    but  with 

1  Johnson  v.  Krassin,  25  Minn.  118,  see  §  226. 

*  Bibb  V.  Hunter,  79  Ala.  351;  Carter  Bros.  v.  Challen,  83  id.  135; 
Reynolds  v.  Caldwell,  80  Ala.  232. 

»  Schultze  V.  New  York  City,  103  N.  Y.  Ill;  [Real  Property  Law,  §  94, 
IV  Consol.  Stat.  (1909)  p.  3390.]  Campbell  v.  Campbell,  70  Wis.  311; 
R.  S.  §  2077;  Skinner  v.  James,  69  id.  605.  And  the  burden  is  on  the  person 
claiming  the  trust  to  disprove  assent.  Knight  v.  Leary,  54  Wis.  459. 
Even  though  the  grantee  subsequently  acknowledges  the  trust  in  writing, 
it  will  not  avail  against  one  who  has  taken  the  land  from  the  grantee  for 
value,  or  even  against  his  assignees  in  insolvency.  Stebbins  v.  Morris, 
23  Blatch.  (U.  S.)  181,  —  a  case  construing  the  New  York  statutes,  the 
object  of  which  is  to  prevent  secret  trusts;  and  for  this  purpose  they  de- 
stroy trusts  resulting  from  the  payment  of  purchase-money  when  the 
deed  is  made  to  another  with  consent  of  the  payor,  except  that  every  such 
conveyance  is  deemed  fraudulent  as  against  the  creditors  of  the  person 
paying  the  purchase-money  until  fraudulent  intent  is  disproved. 

*  As  against  his  creditors  the  transaction  is  presumed  fraudulent  until 
fraudulent  intent  is  disproved,  and  a  trust  results  in  their  favor.  Niver  v. 
Crane,  98  N.  Y.  40.     [See  also  the  statutes  cited  above  and  in  note  a.] 

(a)  There  are  similar  provisions  §§  9699-9701.  For  decisions  inter- 
also  in  the  statutes  of  Kentucky,  preting  these  statutes  see  Hanrion 
Michigan  and  Minnesota,  and  in  v.  Hanrion,  73  Kan.  25  (holding  that 
Indiana  and  Kansas,  with  the  ex-  the  statute  does  not  apply  to  mort- 
ception  in  the  last  two  States  that  gages) ;  Chantland  v.  Bank,  66  Kan. 
a  trust  may  result  where  it  affirm-  549;  HolUday  v.  Perry,  38  Ind.  App. 
atively  appears  that  there  was  588;  Juhus  Locheim  &  Co.  v.  Ever- 
an  agreement  without  fraudulent  sole,  93  S.  W.  52  (Ky.  1906);  Mc- 
intent,  that  the  grantee  was  to  hold  Connell  v.  Gentry,  99  S.  W.  278 
the  land  or  some  interest  therein  (Ky.  1907);  Hamilton  v.  Wickson, 
in  trust  for  the  party  paying  the  131  Mich.  71;  Minneapolis,  etc. 
consideration.  Ky.  Statutes,  (1909)  R.  Co.  v.  Lund,  91  Minn.  45 ,  49 
§§  2050-2051 ;  Mich.  Compiled  Laws,  (holding  that  the  statute  does  not 
(1897)  §§  8835-8837;  Minn.  Rev.  apply  to  executory  contracts  for 
Laws,  (1905)  §§3245-3247;  Indiana  purchase  of  land);  Anderson  v. 
Statutes,  (Bums,  1908)  §§  4017-  Anderson,  81  Minn.  329;  Stitt  v. 
4019;  Kan.  Gen.  Statutes,  (1909)  Rat  Portage  Co.,  96  Minn.  27; 
188 


CHAP,    v.]         PURCHASE    WITH    ANOTHER'S    MONEY.  [§   126. 

this  exception  the  clear  result  of  all  the  cases  is,  that  a  trust  of  a 
legal  estate,  whether  freehold,  copyhold,  or  leasehold,  whether 
taken  in  the  names  of  the  purchaser  and  others  jointly,  or  in  the 
name  of  others,  without  that  of  the  purchaser,  whether  in  one  or 
several,  whether  jointly  or  successively,  results  to  the  person 
who  advanced  the  purchase-money,^  or  on  whose  behalf  it  is  ad- 
vanced ;  as  where  the  money  is  advanced  by  way  of  loan  to  the 
purchaser,  and  the  title  is  taken  in  the  name  of  the  lender  as 
security,  a  trust  results  to  the  purchaser.^  If  only  part  of  the 
purchase-money  is  paid  by  a  third  person,  a  trust  may  result 
pro  tanto^  (a).  This  rule  has  its  foundation  in  the  natural 
presumption,  in  the  absence  of  all  rebutting  circumstances,  that 
he  who  supplies  the  purchase-money  intends  the  purchase  to  be 
for  his  own  benefit,  and  not  for  another,  and  that  the  convey- 
ance in  the  name  of  another  is  a  matter  of  convenience  and  ar- 
rangement between  the  parties  for  collateral  purposes,**  and  this 
rule  is  vindicated  by  the  experience  of  mankind.^  Where  the 
purchase-money  is  not  already  a  trust  fund  it  must  be  paid  at 
the  time  the  purchase  is  made  in  order  to  create  a  resulting  trust 
proper  (that  is,  the  trust  must  arise  at  the  time  of  the  transfer 
of  the  title,  and  cannot  be  raised  by  the  subsequent  application 

»  By  Lord  Ch.  B.  Eyre  in  Dyer  v.  Dyer,  2  Cox,  92. 

»  Bates  V.  Kelly,  80  Ala.  142.  [Towle  v.  Wadsworth,  147  111.  80; 
Miller  v.  Miller,  101  Md.  600;  Borrow  v.  Borrow,  34  Wash.  684;  Hirshfield 
V.  Howard,  59  S.  W.  55  (Tex.  Civ.  App.  1900);  Stitt  v.  Rat  Portage  Co.,  96 
Minn.  27;  HerUhy  v.  Coney,  99  Me.  469;  Holliday  v.  Perr>',  38  Ind.  App. 
588;  Pittock  v.  Pittock,  15  Idaho,  426.] 

»  Somers  v.  Overhulser,  67  Cal.  237;  Lipscomb  v.  Nichols,  6  Col.  290. 

«  2  Story's  Eq.  Jur.  §  1201;  Glidewell  v.  Shaugh,  26  Ind.  319;  Bostle- 
man  v.  Bostleman,  24  N.  J.  Eq.  103. 

^  Edwards  v.  Edwards,  39  Penn.  St.  369.  [Smithsonian  Institution  v. 
Meech,  169  U.  S.  398,  407.] 

Leary  v.   Corvin,   181   N.   Y.   222;  towards  the  purchase-money,  \%nth- 

Fagan  v.  McDonnell,  100  N.  Y.  S.  out  an  understanding  that  it  shall 

641,    115   App.    Div.   89;    Meier  v.  be  represented  by  an  "aliquot"  or 

Bell,  119  Wis.  482;  Scott  r.  Holman,  definite    interest    in    the    property, 

117  Wis.  206.  will  not  raise  a  resulting  trust  pro 

(a)  That  a  general  contribution  tanto,  see  infra,  §  132  and  note. 

189 


§   127,]  RESULTING    TRUSTS.  [cHAP.  V. 

of  money  of  another  to  the  satisfaction  of  the  unpaid  purchase- 
money  ^) ;  and  it  must  also  be  borne  in  mind  that  if  one  person 
advance  the  money  by  way  of  loan  to  the  vendee,  no  trust  results.^ 
Analogous  to  these  cases  where  the  money  is  paid  to  the  vendor 
by  or  on  behalf  of  some  one  other  than  the  vendee  of  the  legal 
title,  are  cases  in  which  the  deed  is  executed  without  intent 
of  a  gift  or  sale  on  time,  and  the  purchase-money  is  not  paid. 
In  effect,  the  vendor  himself  pays  the  purchase-money  in 
such  cases  and  a  trust  results  to  him.^  These  resulting  trusts 
cannot  affect  a  bona  fide  purchaser  without  notice.'*  (a) 

§  127.  If  a  person  having  a  fiduciary  character  purchase 
property  with  the  fiduciary  funds  in  his  hands,  and  take  the 
title  in  his  own  name,  a  trust  in  the  property  will  result  to  the 
cestui  que  trust,  or  other  person  entitled  to  the  beneficial  in- 
terest in  the  fund  with  which  the  property  was  paid  for.^  (6) 

»  Milner  v.  Freeman,  40  Ark.  62;  see  §  133. 

2  Whaley  v.  Whaley,  71  Ala.  162;  see  §  133. 

»  Bennet  v.  Hutson,  33  Ark.  762. 

«  Gray  v.  Corbit,  4  Del.  Ch.  135. 

s  Schlaeper  v.  Corson,  32  Barb.  510;  Rice  v.  Rice,  108  111.  199;  Merket 
V.  Smith,  33  Kans.  66,  whether  the  title  taken  is  absolute  or  only  qualified 
or  contingent;  Weaver  v.  Fisher,  101  111.  146.  In  St.  Patrick's  Church  v. 
Daly,  116  111.  79,  the  rule  is  not  correctly  stated,  though  the  decision  is 
right  on  the  facts.     Palmetto  Co.  v.  Risley,  25  S.  C.  309;  Salinas  v.  Pear- 

(a)    As  to  the  position  of  attach-  extent  of  their  debtor's  moiety,  al- 

ing    creditors    of    the    title    holder,  though  in  equity  the  property  may 

see  infra,  §  815  h  and  notes.    As  to  belong  to  the  partnership.     Gunni- 

whether  the  consideration  of  a  pre-  son  v.  Erie  Dime  Sav.  Co.,  157  Pa. 

existing  debt  will  give  a  purchaser  St.  303;  Colhier  t;.  Greig,  137  Pa.  St. 

the    protection    accorded    to    bona  606;  Warriner  v.  Mitchell,  128  Pa. 

fide   purchasers   for   value   without  St.  153.    This  seems  contrary  to  the 

notice,  see  infra,  §  815  c  and  note.  general  rule  elsewhere.     McMillan 

In  Pennsylvania  when  a  convey-  v.    Hadley,    78    Ind.    590;    Crooker 

ance  of  real  estate  to  copartners  does  i;.  Crooker,  46  Me.  250;  Harney  v. 

not  show  on  its  face  that  the  prop-  First  Nat.  Bank,  52  N.  J.  Eq.  697; 

ertj'  is  to  belong  to  the  partnership.  Page  v.   Thomas,   43  Ohio  St.   38. 

individual  creditors  of  a  partner  who  But  see  Union  Bank  v.  Mechanics' 

holds  the  legal  title  or  a  moiety  of  Bank,  80  Md.  371. 
it  may  levy  upon  the  property  to  the  (6)  Many  of  the  cases,  where  a 

190 


ClIAl'.  V.J 


PURCHASE    WITH    TKLST-MONEY, 


[§  127. 


As  if  a  trustee  purchase  with  the  trust  fund  and  take  the  title 
in  his  own  name  or  in  the  name  of  another  with  notice  of  the 

sail,  24  S.  C.  179;  Kennedy  v.  Baker,  59  Tex.  151 .  An  agent  of  an  illiterate 
man,  loaning  his  principal's  money  on  note  and  mortgage  payable  to 
himself,  who  bids  in  the  property  at  foreclosure  sale,  holds  the  title  in 
trust  for  his  {)rincipal.  Cookson  v.  Richardson,  69  111.  137.  [Dwyer  v. 
O'Connor,  200  111.  52.] 


fiduciary  purchases  with  funds  or 
other  property  which  in  law  or 
equity  belong  to  another,  are  cases 
of  constructive  rather  than  result- 
ing trusts.  Since  the  incidents  of 
a  resulting  trust  are  the  same  as 
those  of  a  constructive  trust  in 
such  cases,  the  distinction  is  of  lit- 
tle practical  importance  and  the 
courts  have  not  always  considered 
it  necessary  to  distinguish  between 
the  two.  There  is,  however,  a  dis- 
tinct difference  at  the  foundation. 
A  resulting  trust  is  based  upon  the 
intention  of  the  party  who  directs 
the  transaction;  a  constructive 
trust  is  imposed  upon  him  by  equity, 
usually  directly  contrary  to  his 
intention,  a  relation  created  or 
constructed  by  equity  for  the  pur- 
pose of  doing  justice  to  the  persons 
whose  funds  have  been  misused. 
Where  the  fiduciary  has  made  the 
purchase  in  repudiation  of  the  ces- 
tui's  or  principal's  rights,  the  trust 
which  arises  is  constructive  rather 
than  resulting.  If  his  intention  at 
the  time  of  the  purchase  was  to 
invest  and  hold  for  the  benefit  of 
his  cestui  or  principal  the  trust 
arising  from  the  use  of  the  latter' s 
funds  is  a  resulting  trust.  Thus  in 
Barger  v.  Barger,  30  Or.  268,  where 
a  husband  used  his  wife's  property 
to  purchase  land,  taking  title  in 
his  own  name,  it  was  pointed  out 
that  if  he  did  it  secretly  in  violation 


of  a  fiduciary  duty,  the  trust  was 
constructive  rather  than  resulting. 
See  also  Farmers'  &  Traders'  Bank 
t;.  Kimball  Milling  Co.,  1  S.  D.  388, 
393;  Gashe  v.  Young,  51  Ohio  St. 
376;  Boswell  v.  Cunningham,  32 
Fla.  277;  Lee  v.  Patten,  34  Fla.  149; 
Moultrie  v.  \^■^ight,  154  Cal.  520; 
Fulton  V.  Jansen,  99  Cal.  591; 
Merrill  v.  Hussey,  101  Me.  439; 
McLaughhn  v.  Fulton,  104  Pa.  St. 
161;  Hanson  v.  Hanson,  78  Neb.  584. 

In  Hanson  v.  Hanson,  78  Neb. 
584,  the  distinction  between  these 
two  kinds  of  trusts  is  stated  as 
follows:  —  "Implied  trusts  are  of 
two  species;  one,  denominated  a 
'resulting  trust'  and  the  other  a 
'constructive  trust.'  In  the  first 
class  are  those  trusts  which  attach 
to  a  legal  estate  acquired  by  con- 
sent of  the  parties,  not  in  violation 
of  any  fiduciary-  duty  or  trust 
relation,  for  the  benefit  of  both 
trustee  and  cestui  que  trust.  This 
trust  arises  out  of,  and  is  declared 
in  favor  of,  the  intent  of  the  parties 
creating  it.  Its  inception  is  in  good 
faith  and  in  furtherance  of  fair  and 
honest  dealing.  The  other  species 
of  impUed  trust,  which  is  called 
'constructive  trust,'  is  one  im- 
posed by  a  court  of  equity  for  the 
purpose  of  enforcing  an  equitable 
right  as  against  the  fraudulent 
intent  of  the  trustee  ex  maleficio." 

An  important  difference  between 
191 


§   127.]  RESULTING    TRUSTS.  [CHAP.  V. 

trust,  the  trust  results  to  the  cestui  que  tru^t ;  ^  if  a  guardian 
purchase  with  the  money  of  his  ward,  a  trust  will  result  to  the 
ward ;  ^  and  if  an  executor  or  administrator  purchase  property 
in  his  own  name  with  money  belonging  to  the  estate,  a  trust  in 
the  property  will  result  to  the  heirs,  legatees,  or  other  persons 
entitled  to  the  beneficial  interest  in  the  estate.^  A  purchase 
with  trust  funds  is  virtually  a  purchase  for  the  cestui.^  If  the 
trustees  of  a  corporation  purchase  lands  in  their  own  names,  with 
the  corporate  funds,  a  trust  will  result  to  the  corporation ;  ^  or 
if  a  committee,  guardians,  or  trustees  of  an  insane  person  pur- 

1  Freeman  v.  Kelly,  1  Hoff.  90;  Harrisburgh  Bank  v.  Tyler,  3  Watts  & 
S.  373;  Martin  v.  Gr^er,  1  Ga.  Dec.  109;  Moffitt  v.  McDonald,  11  Humpli. 
457;  Kirkpatrick  v.  McDonald,  11  Penn.  St.  387;  Wilhelm  v.  Folmer,  6  id. 
296;  Thompson'^  App.  22  id.  16;  Day  v.  Roth,  18  N.  Y.  448;  Lathrop  v. 
Gilbert,  2  Stockt.  344;  McLarren  v.  Brewer,  51  Me.  402;  Pugh  v.  Pugh, 
9  Ind.  132;  Valle  t;.  Bryan,  19  Mo.  423;  Neill  v.  Keese,  13  Tex.  187;  Han- 
cock z;.  Titus,  33  Miss.  224;  Whaley  v.  Whaley,  71  Ala.  161;  Preston  v.  Mc- 
Millan, 58  Al?.  84;  Buck  v.  Paine,  7"^  Maine,  347;  Bank  v.  Simonton,  86 
N.  C.  189. 

'  Caplinger  v.  Stokes,  Meigs,  175;  Lee  v.  Fox,  6  Dana,  171;  Pugh  v. 
Pugh,  9  Ind.  132;  Johnson  v.  Dougherty,  3  Green,  Ch.  406;  Bancroft  v. 
Cousen,  13  Allen,  50.  But  if  the  guardian  buy  for  the  ward,  but  use  his 
own  money  in  payment,  the  ward  cannot  claim  a  trust  in  the  land,  for  it 
is  within  the  statute  of  frauds.  Kisler  v.  Kisler,  2  Watts,  323;  Johnson  v. 
Dougherty,  18  N.  J.  Ch.  406;  Snell  v.  Elam,  2  Heisk.  82.  If  a  guardian 
receive  a  note  in  his  csm  name  in  payment  of  a  debt  due  the  ward,  the 
note  is  held  by  him  in  trust.  Dorr  v.  Davis,  76  Maine,  301.  [Hill  v.  True, 
1C4  Wis.  294;  Hows  v.  Butterworth,  62  S.  W.  1114  (Tenn.  Ch.  App.  1899).] 

3  Wallace  v.  Duffield,  2  Ser.  &  R.  521;  Buck  v.  Uhrich,  16  Penn.  St. 
499;  Claussen  v.  LeFranz,  1  Clarke,  226;  McCrory  v.  Foster,  1  Clarke, 
Iowa,  271;  Harper  v.  Archer,  28  Miss.  212;  Schaffner  v.  Grutzmacher, 
6  Clarke,  137;  Seaman  v.  Cook,  14  111.  501;  Garrett  v.  Garrett,  1  Stro. 
Eq.  96;  Wilhams  v.  Hollingsworth,  1  Strob.  Eq.  103;  White  v.  Drew,  42 
Mo.  561;  Stow  v.  Kimball,  28  111.  93;  Dodge  v.  Cole,  97  111.  338;  Barker 
V.  Barker,  14  Wis.  131. 

*  Gale  V.  Harby,  20  Fla.  171. 

6  Church  V.  Sterling,  16  Conn.  388;  Church  v.  Wood,  5  Ham.  283. 

those   two   kinds   of   trusts   arising  veyed  to  the  trustee,  but  a  results 

from   the   use   of   another's   money  ing  trust  must  arise,  if  at  all,  at  the 

is   that    a   constructive   trust   may  time  the  title  is  transferred.     See 

arise  from  the   use   of   the   money  Long  v.  King,  117  Ala.  423. 
after  the   property   has   been   con- 
192 


CHAP.  V.j  PimCHASE    WITH    TRUST-MONEY.  [§  127. 

chase  property  in  their  own  names  with  the  lunatic's  money,  a 
trust  results  to  the  lunatic; '  or  if  a  trustee  erect  buildings  on  his 
own  land  with  the  trust  funds,^  (a)  or  if  an  agent  with  the 
money  of  his  principal  purchase  lands  and  take  the  deeds  to  him- 
self, a  trust  will  result  to  the  principal; '  or  if  a  partner  purchase 
lands  with  partnership  funds,  and  take  the  title  to  himself,  a 
trust  will  result  to  the  partnership  ;*  or  if  land  is  bought  by  a 
firm  for  firm  purposes,  with  firm  money  and  the  title  is  taken  in 
their  individual  names,  it  is  held  in  trust  for  the  firm;^   or  if 

»  Reid  «;.  Fitch,  11  Barb.  399;  Turner  v.  Pettigrew,  6  Humph.  438; 
Stratton  v.  Dialogue,  1  Green,  Ch.  70;  Buffalo  R.  R.  Co.  v.  Lampson,  47 
Barb.  533;  Hamnett's  App.,  72  Penn.  St.  337. 

2  Brazel  v.  Fair,  26  S.  C.  370. 

'  Robb's  App.,  41  Penn.  St.  45;  Eshleman  v.  Lewis,  49  id.  410;  Far- 
mers', etc.  Bank  v.  King,  57  id.  202;  Church  v.  Sterling,  16  Conn.  388; 
Bank  of  America  v.  Pollock,  4  Edw.  215;  Day  v.  Roth,  18  N.  Y.  448;  Brid- 
enbecker  v.  Lowell,  32  Barb.  10;  Moffitt  v.  McDonald,  11  Humph.  457; 
Hutchinson  v.  Hutchinson,  4  Des.  77;  Follansbe  v.  Kilbreth,  17  111.  522; 
Chastain  v.  Smith,  30  Ga.  96;  Wynn  v.  Sharer,  23  Ind.  253.  [Long  v.  King, 
117  Ala.  423.] 

*  Philips  V.  Crammond,  2  Wash.  C.  C.  441;  Baldwin  v.  Johnston,  Saxt.. 
411;  Freeman  v.  Kelly,  Hoff.  90;  Turner  v.  Pettigrew,  6  Humph.  438,  441; 
Edgar  v.  Donnally,  2  Munf.  387;  Smith  v.  Burnham,  3  Sumner,  435; 
Piatt  V.  Oliver,  2  McLean,  267;  Coder  v.  Haling,  27  Penn.  St.  84;  Smith 
V.  Ramsey,  1  Gil.  111.  373;  Barkley  v.  Tapp,  87  Ind.  25;  Pugh  v.  Currie, 
5  Ala.  446;  Oliver  v.  Piatt,  3  How.  401;  Evans  v.  Gibson,  29  Mo.  223; 
Mallory  v.  Mallory,  5  Bush,  564;  Settembre  v.  Putnam,  30  Cal.  490;  Jen- 
kins V.  Frink,  30  Cal.  586;  Homer  v.  Homer,  107  Mass.  85;  Richards  v. 
Manson,  101  Mass.  480;  Ebberts's  App.  70  Penn.  St.  79;  Winkfield  v. 
Brinkman,  21  Kans.  682;  Trephagen  v.  Burt,  67  N.  Y.  30;  Boyd  v.  McClure, 
1  Johns.  Ch.  582.  [Deancr  v.  O'Hara,  36  Colo.  476;  Riddle  v.  Whit^hill, 
135  U.  S.  621). 

'  Paige  V.  Paige,  71  Iowa,  318. 

(a)  In  such  a  case  there  would  Thus    a   trust    cannot    result  in 

be  an  equitable  hen  upon  the  prop-  favor  of  a  person  whose  fimds  have 

erty  as  security  for  the  trust  funds,  been  wrongfully  used  by  another  in 

rather  than   a  trust.   See  Aiken   v.  pa>nng  some  of  the  premiums  on  a 

Taylor,  62  S.  W.  200  (Tenn.  Ch.  policy  of    life   insurance,    although 

App.  1900);  Clark  v.  Timmons,   39  there  would  usually  be  an  equitable 

S.  W.  534  (Tenn.  Ch.  1897);  Moore  lien  upon   the   policy  and  itB  pro- 

V.   McLure,   124  Ala.    120.      Infra,  ceeds.     Thum  v.  Wolstonholme,  21 

§  827.  Utah,  446. 

VOL.  I.  —  13  103 


§    127.]  RESULTING    TRUSTS.  [cHAP.  V. 

one  take  an  estate  for  services  rendered  jointly  by  himself  and 
another,  the  latter  may  elect  to  regard  the  first  as  a  trustee ;  ^ 
or  if  a  husband  purchase  lands  with  the  separate  estate  of  his  wife 
in  his  hands,  or  with  the  proceeds  or  accumulations  from  it,  or 
money  put  into  his  hands  to  invest  for  his  wife,  and  take  the  title 
in  his  own  name,  a  trust  results  to  the  wife  ^  (but  not  if  the 
property  used  is  such  as  the  husband  has  a  right  to  reduce  to 
possession  and  make  his  own,  and  his  conduct  evinces  an  in- 
tent to  do  this  ^) ;  or  if  a  man  purchase  an  estate  with  the  money 
of  a  woman  with  whom  he  cohabits,  a  trust  results  to  her.*  If 
a  widow  purchase  an  estate  in  her  own  name  with  funds  of  her 
deceased  husband,  a  trust  results  to  his  children;  ^  and  so  if  a 

1  Robarts  v.  Haley,  65  Cal.  402. 

2  Church  V.  Jaques,  1  Johns.  Ch.  450;  3  id.  77;  Brooks  v.  Dent,  1  Johns. 
Md.  Ch.  523;  Dickinson  v.  Codwise,  1  Sandf.  Ch.  214;  Pinney  v.  Fellows, 
15  Vt.  525;  Barron  v.  Barron,  24  Vt.  375;  Lathrop  v.  Gilbert,  2  Stockt. 
344;  Kline's  App.,  39  Penn.  St.  463;  Davis  v.  Davis,  46  id.  342;  Bigley  v. 
Jones,  114id.  510;  Rupp's  App.,  lOOid.  531;  Raybold  v.  Raybold,20id.  308; 
Fillman  v.  Divers,  31  id.  429;  Darkin  v.  Darkin,  23  L.  J.  Ch.  890;  Wallace 
V.  McCullough,  1  Rich.  Eq.  426;  Pritchard  v.  Wallace,  4  Sneed,  405;  Resor 
V.  Resor,  9  Ind.  347;  Lench  v.  Lench,  10  Ves.  511;  Woodford  v.  Stephens, 
51  Mo.  443;  Tilford  v.  Torrey,  53  Ala.  120;  Gainus  v.  Cannon,  42  Ark.  503; 
Slocum  V.  Slocum,  9  Brad.  (111.)  142;  Loften  v.  Witboard,  92  111.  461; 
Radcliff  V.  Radford,  96  Ind.  482;  Derry  v.  Derry,  98  Ind.  324;  Lord  v. 
Bishop,  101  Ind.  334;  Mitchell  v.  Colglazier,  106  Ind.  466;  Broughton  v. 
Brand,  94  Mo.  169;  Bowen  v.  McKean,  82  Mo.  594,  pro  tanto;  City  Nat. 
Bank  v.  Hamilton,  34  N.  J.  Eq.  158;  Price  v.  Brown,  98  N.  Y.  388;  Cade  v. 
Davis,  96  N.  C.  139;  McKamey  v.  Thorp,  61  Tex.  648;  Parker  v.  Coop, 
60  Tex.  Ill,  and  cases  cited;  John  v.  Battle,  58  Tex.  591;  Heath  v.  Slocum, 
115  Pa.  St.  549;  Holgate  v.  Eaton,  116  U.  S.  33.  [Haney  v.  Legg,  129  Ala. 
619;  Leslie  v.  Bell,  73  Ark.  338;  Waterman  v.  Buckingham,  79  Conn.  286; 
Smith  V.  Smith,  132  Iowa,  700;  Hudson  v.  Wright,  204  Mo.  412;  Craw- 
ford V.  Jones,  163  Mo.  577;  McLeod  v.  Venable,  163  Mo.  536;  Jones  v. 
Elkins,  143  Mo.  647;  Mayer  v.  Kane,  69  N.  J.  Eq.  733;  Barger  v.  Barger, 
30  Or.  268;  Byers  v.  Femer,  216  Pa.  St.  233.  See  infra,  §  132,  note  a,  as 
to  payment  of  part  of  the  purchase- money]. 

^  Cummings  v.  Cummings,  143  Mass.  340-342.  [Jones  v.  Jones,  80 
Ark.  379;  Hogue  v.  Steel,  207  lU.  340;  Jesser  v.  Armentrout,  100  Va.  666. 
See  Leslie  v.  Bell,  73  Ark.  338.] 

*  James  v.  Holmes,  4  De  G.,  F.  &  J.  470. 

*  Fox  V.  Doherty,  30  Iowa,  334;  Roberts  v.  Opp,  56  111.  34;  Musham 
V.  Musham,  87  111.  80. 

194 


CHAP,  v.]  PURCHASE    WITH    TRUST-MONEY,  [§  12S. 

father  purchase  in  his  own  name  or  the  name  of  a  third  person 
with  funds  of  his  children ;  ^  and  the  rule  is  the  same  if  purchases 
are  made  out  of  the  savdngs  of  the  wife's  separate  property;  but 
if  the  purchase  is  made  from  savings  out  of  an  allowance  made 
by  the  husband,  or  out  of  the  wife's  earnings,  no  trust  will  re- 
sult.'- Even  where  the  entry  of  land  in  the  name  of  one  for  the 
use  of  another  is  contrary  to  statute,  the  person  with  whose 
money  the  land  was  bought,  if  innocent  of  the  wrongful  entry, 
may  claim  a  resulting  trust.^ 

§  128.  In  all  these  cases  the  transaction  is  looked  upon  as 
a  purchase  paid  for  by  the  cestui  que  trust,  as  the  beneficial  in- 
terest in  the  money  paid  belonged  to  him ;  '*  and  the  identity 
of  the  money  does  not  consist  in  the  specific  pieces  of  money  or 
bills,  but  in  the  general  character  of  the  fund  out  of  which  the 
payment  is  made,  and  the  fund  may  be  followed  so  long  as  its 
general  character  can  be  identified.''  But  when  the  means  of 
identification  fail,  as  when  an  executor  converts  an  estate  into 
money  and  mixes  it  with  the  general  mass  of  his  own  money,  and 
there  is  no  identifying  the  particular  money  of  the  trust,  the  dis- 
tributees or  legatees  have  no  preferences  over  his  other  cred- 
itors, but  they  must  prove  their  claims.^  If,  however,  a  trustee 
purchase  an  estate  with  trust  funds,  and  add  funds  of  his  own  to 
the  purchase-money,  a  trust  will  result  to  the  cestui  que  trust; 

'  Robinson  v.  Robinson,  22  Iowa,  427;  Eastham  v.  Roundtree,  56  Tex. 
110. 

«  Raybold  v.  Raybold,  20  Penn.  St.  308;  Merrill  v.  Smith,  37  Mmne, 
394;  Henderson  v.  Warmack,  27  Miss.  830;  Farley  v.  Blood,  10  Foster, 
354. 

»  Buren  v.  Buren,  79  Mo.  538. 

*  Lench  v.  Lench,  10  Ves.  517;  Trench  v.  Harrison,  17  Sim.  111. 

*  United  States  v.  Waterborough,  Davies,  154;  Goepp's  App.,  15  Penn. 
St.  428;  Thompson's  App.,  22  id.  16;  McLarren  v.  Brewer,  51  Maine, 
402;  De  Bevoise  v.  Sandford,  Hoff.  194;  Campbell  v.  Walker,  5  Ves.  678; 
Downes  v.  Grazebrook,  3  Mer.  200;  Sanderson  v.  Walker,  13  Ves.  601; 
Overseers  of  the  Poor  v.  Bank  of  Virginia,  2  Gratt.  544.  [See  infra,  §  828, 
note.] 

«  Thompson's  App.,  22  Penn.  St.  16;  McComas  v.  Long,  85  lad.  552. 

195 


§  128.]  RESULTING    TRUSTS.  [cHAP,  V. 

and  the  burden  will  be  on  the  trustee  to  show  the  amount  of  his 
own  funds  in  the  purchase,  otherwise  the  cestui  que  trust  will 
take  the  whole.^  If  the  purchase  is  partly  with  trust  funds  and 
partly  not,  the  cestui  has  a  lien  on  the  whole  property  for  the 
amount  of  the  fund  misapplied.^  It  has  been  said  in  some  cases 
that  the  cestui  que  trust  has  no  interests  in  the  property  pur- 
chased with  the  trust  fund  in  the  name  of  the  trustee,  but  only 
a  lien  on  the  property  in  the  nature  of  a  vendor's  lien  for  the 
purchase-money,  with  a  right  to  a  decree  for  a  sale  to  reimburse 
the  trust  fund.'  (a)  This  is  certainly  one  of  the  rights  of  the 
cestui  que  trust,  if  he  elects  to  proceed  in  that  manner,  and  he 
may  hold  the  trustee  responsible,  if  there  is  a  loss  on  such  sale. 
On  the  other  hand,  the  trustee  can  make  no  profit  to  himself  by 
dealing  with  the  trust  fund;  ^  and,  if  he  makes  a  purchase  with 
it,  the  cestui  que  trust  can  elect  to  treat  the  property  as  a  part  of 
the  trust  property,  and  he  is  entitled  to  all  the  advantages  of  the 
speculation  or  investment  thus  made  with  the  property  in  the 
name  of  the  trustee.^  No  trust  results  to  the  holder  of  property 
(H.)  from  the  fact  that  money  has  been  given  to  B.  by  C.  in  order 
that  B.  may  purchase  the  said  property.  H.  cannot  offer  a  deed 
and  demand  the  money .^  (6)  So  where  A.  sells  land  in  which  he 
(A.)  has  an  interest  as  well  as  E.,  A.  giving  a  bond  for  the  making 
of  a  future  good  title  to  the  whole,  and  then  investing  the  money 
received  in  other  property,  there  is  no  trust  for  E.  in  this  prop- 

1  Russell  V.  Jackson,  10  Hare,  209;  McLarren  v.  Brewer,  51  Maine, 
402;  Seaman  v.  Cook,  14  III.  505;  Farmers',  &c.  Bank  v.  King,  57  Penn. 
St.  202;  Persch  v.  Quiggle,  id.  247. 

2  Munroe  v.  Collins,  95  Mo.  42. 

3  Wallace  v.  Duffield,  2  Ser.  &  R.  529;  Wallace  v.  McCuUough,  1  Rich. 
Ch.  426. 

*  Landis  v.  Saxton,  89  Mo.  375;  Ward  v.  Davidson,  id.  445. 

'  Hill  on  Trustees,  534;  Lewin  on  Trusts,  227  (5th  Lond.  ed);  Lench 
V.  Lench,  10  Ves.  511;  19  Ves.  58;  Weaver  v.  Fisher,  110  111.  146;  Bent  v. 
Priest,  86  Mo.  475. 

'  Rogers  v.  Rogers,  63  Iowa,  92. 

(o)  On   this   point   see   infra,    §  (6)  As  to  constructive  trusts  in 

429,  note.  such  cases  see  infra,  §  207  and  note. 

196 


CHAP,  v.]  PURCHASE    WITH    TRUST-MONEY.  [§  128. 

erty;  the  purchase-money  was  obtained  by  A.,  not  in  consid- 
eration for  E.'s  interest  in  the  land,  but  in  consideration  for  the 
promise  made  by  A.  in  his  bond.^  And  if  trust-money  is  expended 
not  in  the  purchase  of  land  but  in  improvements  upon  it,  no  trust 
results  to  the  owner  of  the  money.^  If  one  who  stands  in  no 
fiduciary  relation  to  another  appropriates  the  other's  money, 
and  invests  it  in  real  estate  or  other  property,  no  trust  results 
to  the  owner  of  the  money .^  (a)  There  is  no  doubt  of  this  prin- 
ciple upon  all  the  cases,  but  there  is  some  question  in  the  books 
as  to  what  is  a  fiduciary  relation,  as  where  a  clerk  pilfered  money 
from  the  store  of  his  employer  and  invested  it  in  real  estate,  it 
was  held  that  there  was  no  such  resulting  trust,  that  the  em- 
ployer could  compel  a  conveyance  of  the  land.'*  But  where  a 
clerk  in  a  bank  embezzled  money,  and  invested  it  in  stocks  in 
the  names  of  his  sisters  as  mere  volunteers,  it  was  held  that  a 
trust  resulted  to  the  owners  of  the  money,  and  that  equity  would 
execute  it  by  compelling  a  conveyance;  ^  and  this  would  seem 
to  be  the  better  opinion,  as  a  clerk  certainly  holds  a  confidential 
relation  to  his  employer.  In  Newton  v.  Porter,  it  was  held  that 
the  holders  of  the  proceeds  of  stolen  property  might  be  charged 
as  trustees  for  the  owner,  and  there  would  seem  to  be  no  princi- 
ple to  the  contrary.®    It  may  depend,  however,  upon  the  extent 

1  Hadley  v.  Stuart,  62  Iowa,  271. 

*  Bodwell  V.  Nutter,  63  N.  H.  446.  [Clark  v.  Timmons,  39  S.  W.  534 
(Tenn.  1897).] 

'  Hawthorne  v.  Brown,  3  Sneed,  462;  Ensley  v.  Ballentine,  4  Humph.  233. 

*  Campbell  v.  Drake,  4  Ired.  94;  Pascoag  Bank  t'.  Hunt,  3  Edw.  583. 
'  Bank  of  America  v.  Pollock,  4  Edw.  215;  post,  §  135. 

*  Newton  v.  Porter,  5  Lansing,  417;  Thompson  v.  Parker,  3  Mason, 
332;  Hoffman  v.  Canow,  22  Wend.  285;  Bassett  v.  Spofford,  45  N.  Y.  387; 
Silsbury  v.  McCoon,  3  Comst.  579. 

(a)  But  a  constructive  trust  will  lien  upon  the  property  into  which 

be  declared  as  to  property  purchased  the  money  can  be  traced,  which  lien 

with  the  stolen  money  or  the  pro-  gives  the  owner  of  the  stolen  money 

ceeds  of    stolen  property,  Lamb  v.  rights  in  the  property  prior  to  those 

Rooney,  72  Neb.  322;  Farmers'  &  of  general   creditors.     See   chapter 

Traders'   Bank  v.   Kimball   Milling  on  constructive  trusts. 
Co.,   1  S.   D.  388;  or  an  equitable 

197 


§   129.]  RESULTING    TRUSTS.  [CHAP.  V. 

to  which  the  clerk  is  trusted.  In  Lehmann  v.  Rothbarth  ^  the 
husband  of  a  trustee  taking  upon  himself  the  management  of  the 
estate  was  held  to  account  as  trustee  to  the  cestui  for  funds 
coming  to  him  as  self-constituted  agent  for  the  true  trustee,  (a) 

§  129.  If  a  person  standing  in  a  fiduciary  relation  make  use 
of  his  position  to  purchase  an  interest  in  the  trust  property 
with  his  own  funds,  as  a  reversion,  a  junior  or  senior  mortgage, 
or  other  interest  from  a  third  person;  or  if  he  purchase  other 
property  so  immediately  connected  with  the  trust  estate,  that 
it  must  be  used  with  the  trust  estate,  and  the  independent  owner- 
ship of  which  would  seriously  affect  the  use  and  value  of  the  trust 
property,  he  cannot  retain  the  same  for  his  own  benefit,  but  he 
must  hold  it  upon  a  resulting  trust  for  his  beneficiary.^  (6) 
The  prohibition  of  the  purchase  of  trust  property  by  the  trustee 
does  not  depend  on  any  question  of  fraud,  but  is  made  absolute 
to  avoid  the  possibility  of  fraud.^  The  temptation  of  self-interest 
is  too  powerful  and  insinuating  to  be  trusted.  A  trustee  must 
not  put  himself  in  a  position  where  his  private  profit  will  oppose 

'111  III.  185. 

2  Holt  V.  Holt,  1  Ch.  Cas.  190;  Nesbitt  v.  Tredennick,  1  Ball  &  B.  46; 
Greenlaw  v.  King,  3  Beav.  9;  10  L.  J.  (n.  s.)  Ch.  129;  Van  Epps  v.  Van 
Epps,  9  Paige,  237;  Torrey  v.  Bank  of  Orleans,  9  Paige,  649;  Tanner  v. 
Elworthy,  4  Beav.  487;  Waters  v.  Bailey,  2  Y.  &  C.  (N.  C.)  Ch.  219;  Ged- 
dings  V.  Geddings,  3  Russ.  241;  Dickinson  v.  Codwise,  1  Sandf.  Ch.  226; 
Settembre  v.  Putnam,  30  Cal.  490;  Jenkins  v.  Frink,  30  Cal.  586;  Hall  v. 
Vanness,  49  Penn.  St.  457;  Harrold  v.  Lane,  53  id.  269;  Heath  v.  Page, 
63  id.  108;  Campbell  v.  Campbell,  21  Mich.  459;  King  v.  Cushman,  43  111. 
31;  Clark  v.  Cantwell,  3  Head,  202;  Holmes  v.  Campbell,  10  Minn.  40; 
Wells  V.  Francis,  7  Col.  396;  Shaw  v.  Shaw,  86  Mo.  594. 

»  Downs  V.  Richards,  4  Del.  Ch.  416;  Munson  v.  S.  G.  &  C.  R.  R.  Co., 
103  N.  Y.  58. 

(a)  Fraud,  as  the  foundation  of  circumstances  is  constructive 
a  trust,  may  be  waived  by  the  rather  than  resulting,  tiince  it  can- 
grantor's  subsequent  act  of  con-  not  be  said  to  be  based  upon  the 
veyance,  and  his  equitable  interest  intention  of  the  person  paying  the 
be  thereby  extinguished.  Thomp-  consideration.  See  irifra,  §  194 
son  V.  Marley,  102  Mich.  476.  et  seq.  and  notes. 

(6)  A   trust   arising  under   such 

198 


CllAP.  v.]  PURCHASE    WITH    TRUST-MONEY.  [§  129. 

the  interests  of  the  estate.'  If  a  trustee  buys  an  outstanding 
claim  against  the  trust  property,  the  transaction  will  be  treated 
as  a  payment  only,  and  he  will  be  allowed  only  what  he  gave.^ 
Railway  directors  cannot  deal  with  the  property  for  their  indi- 
vidual benefit,  and  a  sale  of  it  to  any  one  of  the  board  would  be 
voidable  in  equity  at  the  instance  of  any  one  interested  in  the 
road.'  A  trustee  may  not  buy  for  himself  an  outstanding  title 
to  the  estate.^  (a)  One  in  a  fiduciary  position  must  not  so  con- 
duct himself  as  to  bring  his  private  interests  in  conflict  with 
the  duties  of  his  office.  If  an  administrator  buys  land  sold  to  pay 
a  debt  due  his  intestate,  the  heirs  and  distributees  can  elect  to 
take  the  land  and  allow  him  his  bid.  ^  A  purchaser  from  a  trustee 
who  has  acquired  the  trust  property  stands  in  no  better  position 
than  the  trustee,  if  said  purchaser  has  notice  of  the  facts.®  A 
mere  agent,  who  purchases  a  reversion  in  the  lands  of  his  prin- 
cipal at  a  public  sale  from  third  persons  with  his  own  money, 
will  not  be  held  as  a  trustee,  unless  he  purchase  under  some 
agreement  to  that  eflFect;  ^  and  the  same  rule  applies  to  a  tenant 
in  common.^ 

»  Russell  V.  Peyton,  4  Brad.  (111.)  481. 

*  Rankin  v.  Bancroft  &  Co.,  114  111.  441;  Oilman  v.  Healey,  49  Hun, 
274. 

»  Little  Rock  &  F.  S.  Ry.  Co.  v.  Page,  35  Ark.  304;  Duncomb  t;.  N.  Y. 
H.  &  No.  R.  R.  Co.,  84  N.  Y.  190. 

*  Baker  v.  S.  &  W.  Mo.  R.  Co.,  86  Mo.  75.     [See  infra,  §  195,  note.) 
«  Jones  V.  Graham,  36  Ark.  383. 

«  Cavagnaro  v.  Don,  63  Cal.  231. 

^  Kennedy  v.  Keating,  34  Mo.  25. 

8  Keller  v.  Auble,  58  Penn.  St.  410;  Mandeville  v.  Solomon,  33  Cal.  38. 

(o)  Nor   will   one    cotenant    be  U.  S.  276,  296;  Parker  v.  Brast,  45 

allowed  to  buy  in  and  hold  for  his  W.  Va.  399.     But  strictly  speaking, 

own  benefit  an  outstanding  incum-  the  trust  which  will  be  decreed  ie 

brance     upon     the     joint     estate,  a    constructive,     not    a    resulting, 

Brundy  i'.  Mayfield,  15  Mont.  201;  trust.     The   same   rule   applies   t« 

Barbour  v.  Johnson,  21   D.  C.  40;  executors.      Merrick  v.   Waters,   51 

Allen  V.  Arkenburgh,  37  N.  Y.  S.  N.  Y.  App.  Div.  83;  64  N.  Y.  S. 

1032;  Virginia  Coal   Co.   v.  Kelly,  542.    See  also  Eisert  v.  Bowen,  117 

93  Va.  332;  Turner  v.  Sawyer,  150  N.  Y.  App.  Div.  488;  102  N.  Y.  S. 

U.  S.   57S:  Rector  t;.   Gibbon,  111  707;  Frohlich  v.  Seacord,  180  lU.  85. 

199 


§  131.]  RESULTING    TRUSTS.  [CHAP.  V. 

§  130.  The  rule  embraces  personal  property  as  well  as  real 
estate;  and  if  a  man  purchase  a  bond/  annuity,^,  stock,^  mort- 
gage, or  other  personal  interest,^  in  the  name  of  a  third  person, 
the  equitable  ownership  results  to  the  person  from  whom  the 
consideration  moves ;  but  it  is  said  that  a  resulting  trust  cannot 
be  set  up  in  personal  property  perishable  in  its  nature.^ 

§  131.  Nor  can  a  resulting  trust  be  set  up  if  it  would  break 
in  upon  the  policy  of  the  law,  or  a  public  statute;  ^  as  if  an 
alien  forbidden  to  hold  land  should  pay  the  purchase-money 
and  take  the  deed  to  a  stranger,  a  resulting  trust  in  his  favor 
would  not  be  enforced  by  the  courts,  (a)  But  a  slave,  who 
could  not  acquire  property,  purchased  land  in  the  name  of  a 
free  person  with  the  assent  of  his  master,  and  afterwards  be- 

1  Ebrand  v.  Dancer,  2  Ch.  Gas.  26;  1  Eq.  Ab.  382. 

*  Rider  v.  Rider,  10  Ves.  363,  and  cases  cited;  2  Mad.  Ch.  Pr.  101. 

»  Ibid.;  Lloyd  v.  Read,  1  P.  Wms.  607;  Sidmouth  v.  Sidmouth,  2  Beav. 
447;  Garrick  v.  Taylor,  29  Beav.  79;  4  De  G.,  F.  &  J.  159;  Beecher  v.  Major, 
2  Dr.  &  Sm.  431 ;  Ex  parte  Houghton,  17  Ves.  253;  Creed  v.  Lancaster  Bank, 
1  Ohio  St.  1.     [McClung  v.  Colwell,  107  Tenn.  592.] 

*  Ibid.;  Kelley  v.  Jenness,  .50  Maine,  455. 
^  Union  Bank  v.  Baker,  8  Humph.  447. 

"  Ex  parte  Yallop,  15  Ves.  67;  Ex  parte  Houghton,  17  Ves.  251;  Reding- 
ton  V.  Redington,  3  Ridg.  181;  Groves  v.  Groves,  3  Y.  &  J.  163;  Camden 
V.  Anderson,  5  T.  R.  709;  Proseus  v.  Mclntyre,  5  Barb.  425;  Ford  v.  Lewis, 
10  B.  Mon.  127;  Baldwin  v.  Campfield,  4  Halst.  Ch.  891;  Cutler  v.  Tuttle, 
19  N.  J.  Eq.  562.  [Keely  v.  Gregg,  33  Mont.  216,  225.  But  see  Lufkin  ;;. 
Jakeman,  188  Mass.  528.] 

^  Leggett  V.  Dubois,  5  Paige,  114;  Hubbard  v.  Goodwin,  3  Leigh,  492; 
Philips  V.  Crammond,  2  Wash.  C.  C.  441;  Taylor  v.  Benham,  5  How.  U.  S. 
270;  Farley  v.  Shippen,  Wythe,  135;  Alsworth  v.  Cordby,  3  Miss.  42;  Childers 
V.  Childers,  1  De  G.  &  J.  482;  Phillpotts  v.  Phillpotts,  10  C.  B.  85.  But  if 
such  conveyance  is  not  intended  as  a  fraud  upon  the  law,  but  is  taken  by 
an  agent  or  attorney  of  the  alien  in  his  own  name  without  authority,  equity 
will  protect  the  rights  of  the  alien.  Austin  v.  Brown,  6  Paige,  448;  McCow 
V.  Galbrath,  7  Rich.  Law,  74. 

(a)  In  Texas,  it  seems  that  a  re-  a  judgment  for  the  money  itself  by 

suiting  trust  does  not  arise  for  an  suit,  and  such  judgment  may  be  a 

alien  whose  money  another  invests  lien  upon  the  land.    Zundell  v.  Gess, 

in  land,  although  he  may  recover  73  Tex.  144. 
200 


CHAP,  v.]  PURCHASE    WITH    TRUST-MONEY.  [§   132. 

coming  free,  the  resulting  trust  was  enforced  in  his  favor;  * 
and  so  if  the  disabihty  of  the  ahen  is  removed  by  naturaHzation 
or  otherwise,  he  may  enforce  a  trust  created  while  he  was  under 
disability.^ 

§  132.  Lord  Hardwicke  doubted  whether  the  application  of 
the  rule  was  not  confined  to  a  single  purchaser;  ^  but  it  has  been 
expressly  decided  and  long  acted  upon,  that  if  several  make  the 
purchase,  pay  the  consideration,  but  take  the  title  in  the  name 
of  a  stranger,  the  trust  will  result  to  them  jointly.^  The  same 
rule  applies  if  several  pay  the  consideration,  and  take  the  title 
to  one  of  their  number.  If  the  parties  contribute  unequally  to 
the  payment  of  the  consideration,  the  trust  results  to  each  of 
them  in  proportion  to  the  amount  paid  by  each.^  (a)    In  these 

*  Leiper  v.  Hoffman,  26  Miss.  615. 
^  Osterman  v.  Baldwin,  6  Wall.  116. 

3  Crop  V.  Norton,  Barn.  179;  9  Mod.  233;  2  Atk.  74. 

*  Baumgartner  v.  Guessfeld,  38  Mo.  36;  Wray  v.  Steele,  2  V.  &  B.  388; 
Ross  t'.  Hegeman,  2  Edw.  373;  Larkins  v.  Rhoades,  5  Porter,  196;  Powell 
V.  Monson  and  Brim.  Manuf.  Co.,  3  Mason,  347;  Letcher  v.  Letcher,  4  J.  J. 
Marsh.  590;  Keaton  v.  Cobb,  1  Dev.  Ch.  439. 

»  Rigden  v.  Walker,  3  Atk.  735;  Lake  v.  Gibson,  1  Eq.  Cas.  Ab.  291; 
Botsford  V.  Burr,  2  Johns.  Ch.  405;  Quackcnbush  v.  Leonard,  9  Paige,  334; 
Jackson  v.  Moore,  6  Cow.  706;  Stewart  v.  BrowTi,  2  Serg.  &  R.  461;  Morey 
V.  Herrick,  18  Penn.  St.  129;  Buck  v.  Swazy,  35  Maine,  41;  Kelley  i-.  Jenness, 
50  id.  455;  Powell  v.  Monson  &  Brim.  Manuf.  Co.,  3  Mason,  347;  Pierce 
V.  Pierce,  7  B.  Mon.  433;  Letcher  v.  Letcher,  4  J.  J.  Marsh.  590;  Shoemaker 
V.  Smith,  11  Humph.  81 ;  Bernard  v.  Bongard,  Harr.  Ch.  130;  Purdy  v.  Purdy, 
3  Md.  Ch.  547;  Seaman  v.  Cook,  14  111.  505;  Dow  v.  JeweU,  18  N.  H.  340; 
Hall  V.  Young,  37  N.  H.  134;  Pinney  v.  Fellows,  15  Vt.  525;  Brothers  v. 
Porter,  6  B.  Mon.  106;  Bogert  v.  Perry,  17  Johns.  351;  Jackson  v.  Bateman, 
2  Wend.  570;  Cloud  v.  Ivie,  28  Mo.  578;  Baumgartner  t-.  Guessfeld,  38  Mo. 
36;  Union  College  v.  Wheeler,  5  Lans.  160;  McDonald  v.  McDonald,  24 
Ind.  68;  Frederick  v.  Haas,  5  Nev.  389;  Case  v.  Codding,  38  Cal.  191 ;  Clark 
V.  Clark,  43  Vt.  685. 

(o)  It  is  undoubted  law  that  an  undivided  interest  in  the  property 
when  part  of  the  purchase  price  if  it  is  apparent  that  the  property 
or  other  consideration  for  the  con-  of  the  other  was  used  for  the  pur- 
veyance is  shown  to  have  been  paid  chase  of  a  definite  part  of  the  whole 
or  furnished  by  a  person  other  than  title,  provided,  of  course,  the  inten- 
the  grantee,  a  trust  may  result  as  to  tion  of  the  parties  is  not  shown  to 

201 


§  132.] 


RESULTING    TRUSTS. 


[chap.  V. 


cases  it  is  settled  that  a  general  contribution  towards  a  purchase 
is  not  sufficient;  but  the  person  claiming  a  resulting  trust  must 


have  been  inconsistent  with  a 
resulting  trust.  Sanders  v.  Steele, 
124  Ala.  415;  Moultrie  v.  Wright, 
154  Cal.  520;  Faylor  v.  Faylor,  136 
Cal.  92;  Costa  v.  Silva,  127  Cal.  351 
Towle  V.  Wadsworth,  147  111.  80 
Skehill  V.  Abbott,  184  Mass.  145 
Stevenson  v.  Smith,  189  Mo.  447 
Beringer  v.  Lutz,  188  Pa.  St.  364 
Gaynor  v.  Quinn,  212  Pa.  St.  362 
Speer  v.  Bums,  173  Pa.  St.  77 
Bible  V.  Marshall,  103  Tenn.  324 
Baylor  v.  Hopf,  81  Tex.  637;  Reese 
I'.  Murnan,  5  Wash.  373;  Currence 
V.  Ward,  43  W.  Va.  367;  Rogers  v. 
Donnellan,  11  Utah,  108;  Barton  v. 
Magruder,  69  Miss.  462;  Sweet  v. 
Stevens,  63  S.  W.  41  (Ky.  1901). 
See  also  Waterman  v.  Buckingham, 
79  Conn.  286  (a  constructive  trust) ; 
Mayer  v.  Kane,  69  N.  J.  Eq.  733. 
See  infra,  §  133.  But  there  are 
frequent  decisions  to  the  effect  that 
a  general  contribution  to  the  pur- 
chase-money, or  the  contribution 
of  an  undetermined  amount,  or  a 
contribution  without  any  express 
or  implied  understanding  that  it  is 
to  be  represented  in  a  definite  part 
of  the  property,  will  not  raise  a 
resulting  trust.  Los  Angeles  etc.  Co. 
V.  Occidental  Oil  Co.,  144  Cal.  528; 
Long  V.  Scott,  24  App.  D.  C.  1; 
Ouasch  V.  Zinkel,  213  111.  119;  De- 
vine  V.  Devine,  180  111.  447;  Jackson 
V.  Kraft,  186  111.  623;  Rotter  v.  Scott, 
111  Iowa,  31;  Andrew  v.  Andrew, 
114  Iowa,  524;  Dudley  v.  Dudley, 
176  Mass.  34  (compare  with 
SkehiU  v.  Abbott,  184  Mass.  145); 
Bailey  v.  Hemenway,  147  Mass. 
326;  Schierloh  v.  Schierioh,  148 
N.  Y.  103;  McCormick  v.  Cooke, 
202 


199  Pa.  St.  631;  McGowan  v.  Mc- 
Gowan,  14  Gray,  119.  See  also 
Storm  V.  McGrover,  70  N.  Y.  App. 
Div.  33;  74  N.  Y.  S.  1032. 
Thus  no  trust  will  result  for  the 
benefit  of  a  husband  where  the  wife 
purchases  with  a  fund  to  which 
both  contributed  in  undetennined 
proportion.  Devine  v.  Devine,  180 
111.  447;  Andrew  v.  Andrew,  114 
Iowa,  524.  No  trust  results  from 
the  circumstance  that  a  wife  fur- 
nished $1175  of  the  total  purchase 
price,  $13,500,  the  husband  taking 
title  in  his  name.  Schierloh  v. 
Schierioh,  148  N.  Y.  103.  See  also 
McCormick  v.  Cooke,  199  Pa.  St. 
631;  Leary  v.  Corvin,  181  N.  Y. 
222. 

The  rule  is  stated  as  follows 
in  McGowan  v.  McGowan,  14  Gray, 
119,  121:  "There  is  no  doubt  of 
the  correctness  of  the  doctrine,  that 
where  the  purchase-money  is  paid 
by  one  person,  and  the  conveyance 
taken  by  another,  there  is  a  result- 
ing trust  created  by  implication 
of  law  in  favor  of  the  former.  And 
where  a  part  of  the  purchase-money 
is  paid  by  one,  and  the  whole  title 
is  taken  by  the  other,  a  resulting 
trust  pro  tanto  may  in  like  manner, 
under  some  circumstances,  be  cre- 
ated. But  in  the  latter  case  we 
beUeve  it  to  be  well  settled  that  the 
part  of  the  purchase-money  paid 
by  him  in  whose  favor  the  resulting 
trust  is  sought  to  be  enforced,  must 
be  shown  to  have  been  paid  for 
some  specific  part,  or  distinct  in- 
terest in  the  estate;  for  some  aliquot 
part,  as  it  is  sometimes  expressed; 
that  is  for  a  specific  share,   as  a 


CHAP,  v.] 


PURCHASE    WITH    TRUST-MONEY. 


[§  132. 


show  that  he  paid  some  specific  sum,  for  some  distinct  interest 
in,  or  aliquot  part  of,  the  estate,  as  for  a  specific  share,  as  one-half 


tenancy  in  common  or  joint  ten- 
ancy of  one-half,  one-fourth,  or 
other  particular  fraction  of  the 
whole;  or  for  a  particular  interest 
as  a  life  estate,  or  tenancy  for  years, 
or  remainder  in  the  whole;  and  that 
a  general  contribution  of  a  sum  of 
money  toward  the  entire  purchase 
is  not  sufficient." 

The  theory  of  resulting  trusts 
when,  for  example,  a  conveyance  of 
land  is  made  to  one  person  for  a 
money  consideration  furnished  by 
another,  is  that  the  latter's  money 
has  become  transformed  into  land 
without  change  in  the  beneficial 
ownership.  Equity  regards  the 
land  as  hie  property  in  its  changed 
form,  since  that  was  the  intention 
of  the  parties.  Accordingly,  when 
a  person  other  than  the  grantee 
furnishes  only  a  part  of  the  con- 
sideration, a  trust  cannot  attach 
by  implication  on  this  theory,  unless 
it  is  shown  that  the  part  paid  by  him 
went  into  or  was  paid  for  a  definite 
part  of  the  land  with  the  intention 
that  the  beneficial  owTiership  in 
that  part  should  be  in  him.  Barger 
V.  Barger,  30  Or.  268.  Although 
equity  will  sometimes  construct  a 
trust  when  there  is  no  such  intention, 
and  such  constructive  trust  does  not 
differ  in  substance  from  a  resulting 
trust,  it  seems  better  for  the  sake 
of  clearness  to  reserve  the  term 
"resulting  trusts"  for  those  which 
arise  from  presumed,  or  imphed,  in- 
tention, which  in  no  case  can  be 
contrary  to  the  actual  intention 
as  proved  by  proper  evidence. 

The  beneficial  interest  resulting 
to  one  who  furnishes  only  part  of  the 


consideration  cannot  bear  a  larger 
proportion  to  the  whole  property 
than  the  share  of  the  purchase- 
money  paid  by  him  bears  to  the 
whole  consideration.  Thus  a  trust 
as  to  three-fourths  of  the  property 
cannot  be  established  by  showing 
by  parol  that  the  parties  intended 
one-fourth  of  the  purchase  price 
to  pay  for  three-fourths  of  the 
title.  Under  such  circumstances  the 
resulting  trust  cannot  exceed  one- 
fourth.  Collins  V.  Corson,  30  A. 
862  (N.  J.  Ch.  1894);  McGee  v. 
Wells,  52  S.  C.  472,  479;  O'Donnell 
V.  White,  18  R.  I.  659.  But  there 
seems  no  reason  why  the  intention 
of  the  parties  might  not  be  used 
to  cut  down  the  beneficial  interest 
below  the  cestui's  pro  tanto  share. 

The  expression  "  aliquot  part  " 
is  interpreted  to  mean  merely  a 
definite  part,  not  an  exact  factor 
of  the  whole.  Skehill  v.  Abbott, 
184  Mass.  145;  Currence  i'.  Ward, 
43  W.  Va.  367. 

The  understanding  of  the  parties 
that  a  trust  shall  result  ■pro  tanto 
when  one  furnishes  part  of  the  con- 
sideration need  not  be  expressed,  but 
may  frequently  be  gathered  from 
the  mere  circumstance  that  one  has 
furnished  a  definite  part  of  the 
whole.  Skehill  v.  Abbott,  184  Mass. 
145.  This  seems  to  be  the  usual 
presumption  when  there  is  nothing 
in  the  relationship  of  the  parties  or 
in  the  other  circumstances  which 
can  adequately  account  for  such 
use  of  another's  property.  Sanders 
V.  Steele,  124  Ala.  415;  Camden  v. 
Bennett,  64  Ark.  155;  Costa  i'.  Silva, 
127  Cal.  351;  Stevenson  v.  Sniith, 

203 


§  133.] 


RESULTING   TRUSTS. 


[chap.  V. 


or  one-quarter,  or  other  particular  fraction  of  the  whole;  or 
for  a  particular  interest,  as  for  an  estate  for  life  or  years,  or  in 
remainder  in  the  whole  estate.^  Where  two  contribute  funds  and 
the  proportions  do  not  appear,  the  presumption  is  that  the 
proportions  are  equal.^ 

§  133.  The  trust  must  result,  if  at  all,  at  the  instant  the 
deed  is  taken,  and  the  legal  title  vests  in  the  grantee.  No  oral 
agreements,  and  no  payments,  before  or  after  the  title  is  taken, 
will  create  a  resulting  trust,  unless  the  transaction  is  such  at  the 

1  McGowan  v.  McGowan,  14  Gray,  119;  Buck  v.  Warren,  id.  122,  n.; 
Baker  v.  Vining,  30  Maine,  121;  Sayre  v.  Townsends,  15  Wend.  647;  White 
V.  Carpenter,  2  Paige,  217;  Perry  v.  McHenry,  13  111.  227;  Crop  v.  Norton, 
2  Atk.  74;  Reynolds  v.  Morris,  17  Ohio  St.  510;  Cutler  i'.  Tuttle,  19  N.  J. 
Ch.  561;  1  Lead.  Ca.  Eq.  276;  Billings  v.  Clinton,  6  Rich.  (S.  C.)  90;  Olcott 
V.  Bynum,  17  Wall.  44. 

2  Shoemaker  v.  Smith,  11  Humph.  81. 


189  Mo.  447;  Baylor  v.  Hopf,  81 
Tex.  637;  Obermiller  v.  Wylie,  36 
Fed.  641.  See  also  Heiskell  v. 
Trout,  31  W.  Va.  810. 

There  have  been  several  cases 
where  the  court  would  not  imply 
a  trust  pro  tanto  when  it  was  clearly 
shown  that  a  husband  had  used 
part  of  his  wife's  money  in  the 
purchase  with  her  consent,  but 
without  any  expressed  understand- 
ing that  she  should  have  an  interest 
in  the  property.  Rotter  v.  Scott, 
111  Iowa,  31;  Jackson  v.  Kraft, 
186  111.  623;  Schierloh  v.  Schierloh, 
148  N.  Y.  103;  McCormick  v. 
Cooke,  199  Pa.  St.  631.  See  also 
Dudley  v.  Dudley,  176  Mass.  34. 
But  in  Missouri,  where  a  husband 
cannot  become  owner  of  his  wife's 
separate  property  or  use  it  for  his 
own  benefit  without  her  written 
consent,  a  trust  pro  tanto  has  been 
implied  under  similar  circumstances. 
McLeod  V.  Venable,  163  Mo.  536; 
204 


Crawford  v.  Jones,  163  Mo.  577; 
Winn  V.  Riley,  151  Mo.  61;  Jones 
V.  Elkins,  143  Mo.  647.  See  also 
Haney  v.  Legg,   129  Ala.  619. 

When  the  purchase  price  is  paid 
with  funds  owned  by  two  or  more 
as  tenants  in  common  or  as  joint 
tenants  or  as  copartners,  and  the 
title  is  taken  by  one  of  them  a  trust 
results  for  the  others  so  that  the 
equitable  interests  in  the  property 
will  be  the  same  as  were  the  legal 
interests  before  the  conversion. 
Speer  v.  Bums,  173  Pa.  St.  77; 
Fay  V.  Fay,  50  N.  J.  Eq.  260. 

When  the  money  of  another  is 
used  without  right  in  the  purchase 
of  property,  a  constructive  trust  may 
be  decreed  as  to  all  or  part  of  the 
property  according  as  justice  re- 
quires. Farmers'  &  Traders'  Bank 
V.  Kimball  Milling  Co.,  1  S.  D.  388, 
393.  See  infra  under  constructive 
trusts. 


CHAl'.  v.]  PURCHASE    WITH    TRUST-MONEY.  [§    133. 

moment  the  title  passes  that  a  trust  will  result  from  the  trans- 
action itself.'  (a)    But  if  the  transaction  creates  a  trust,  a  sub- 

'  See  §  126;  Frickett  v.  Durham,  109  Mass.  422;  Rogers  v.  Murray,  3 
Paige,  390;  Dudley  v.  Batchelder,  53  Me.  403;  Connor  v.  Lewis,  10  Maine, 
275;  Buck  v.  Swazey,  35  id.  51;  Pinnoch  v.  Clough,  16  Vt.  500;  Taliaferro 
V.  Taliaferro,  6  Ala.  404;  McGowan  v.  McGowan,  14  Gray,  119;  Barnard 
V.  Jewett,  97  Mass.  87;  Freeman  v.  Kelly,  1  Hoff.  90;  Foster  v.  Trustees, 
&c.,  3  Ala.  302;  Forsyth  v.  Clark,  3  Wend.  637;  Steere  v.  Steere,  5  Johns.  Ch. 
1;  Botsford  V.  Burr,  2  Johns.  Ch.  408;  Jackson  i;.  Moore,  6  Cow.  706;  White 
V.  Carpenter,  2  Paige,  218;  Niver  v.  Crane,  98  N.  Y.  40;  Page  v.  Page,  8 
N.  H.  187;  Buck  v.  Pike,  2  Fairf.  9;  Graves  v.  Dugan,  6  Dana,  331;  Wallace 
V.  Marshall,  9  B.  Mon.  148;  Gee  v.  Gee,  2  Sneed,  395;  Kelly  v.  Johnson, 
28  Mo.  249;  Williard  v.  Williard,  56  Penn.  St.  119;  Nixon's  App.,  63  id.  279; 
Cutler  V.  Tuttle,  19  N.  J.  Eq.  561;  Wheeler  t;.  Kirtland,  23  id.  13;  Tunnard 
V.  Littell,  id.  264;  Sheldon  v.  Harding,  44  111.  68;  Westerfield  v.  Kimmer, 
82  Ind.  369;  Kendall  v.  Mann,  11  Allen,  15;  Gerry  v.  Stimson,  60  Me.  186; 
Forsyth  v.  Clark,  3  Wend.  657;  Davis  v.  Wetherell,  11  Allen,  19,  n.;  Miller 
V.  Blose,  30  Grat.  (Va.  744;  Billings  v.  Clinton,  6  Rich.  (S.  C.)  90;  Boozer 
V.  Teague,  27  S.  C.  349;  Richardson  v.  Day,  20  S.  C.  412;  Parker  v.  Coop, 
60  Tex.  Ill;  Du  Val  v.  Marshall,  3  Ark.  230;  Rhea  v.  Tucker,  56  Ala.  450; 
McClure  v.  Doak,  6  Baxter  (Tenn.),  364;  Sullivan  v.  Sullivan,  86  Tenn.  376. 
A  subsequent  agreement  will  not  raise  such  a  trust.  Knox  v.  McP^arran, 
4  Col.  586.  [Lynch  v.  Herrig,  32  Mont.  267;  Pickler  v.  Pickler,  180  111.  168; 
Bank  v.  Gilmer,  117  N.  C  416;  Ostheimer  v.  Single,  73  N.  J.  Eq.  539;  Jones 
V.  Hughey,  46  S.  C  193;  Gilbert  v.  Lawrence,  56  W.  Va.  281,  292;  Bright 
V.  Knight,  35  W.  Va.  40;  Whitley  i;.  Ogle,  47  N.  J.  Eq.  67;  Byers  v.  Femer, 
216  Pa.  St.  233.] 

(o)  Paying  off  an  incumbrance  gage  on  the  property  for  $2000, 
upon  the  property  after  the  title  signed  by  both  the  wife  and  her  hus- 
has  passed,  even  though  the  incum-  band,  no  trust  results  for  the  bene- 
brance  is  security  for  part  or  all  of  fit  of  the  husband  upon  his  pajang 
the  purchase  price,  will  not  raise  a  the  mortgage  note.  Wilder's  Ex'r 
resulting  trust  as  to  any  part  of  the  v.  Wilder,  75  Vt.  178.  In  Crow- 
property,  and  parol  agreements  of  ley  v.  Crowley,  72  N.  H.  241,  a  farm 
trust  entered  into  by  the  title  holder  waa  purchased  for  $850,  and  title 
subsequently  to  the  conveyance  to  was  taken  in  the  name  of  a  father, 
him  will  not  serve  the  purpose.  The  consideration  was  paid  by 
Merrill  v.  Hussey,  101  Me.  439,  445;  $300  in  cash  belonging  to  a  minor 
Gilbert  v.  Lawrence,  56  W.  Va.  281,  son  and  the  father's  mortgage  note 
292;  Pickler  v.  Pickler,  180  111.  168;  for  $550.  Later  the  son  paid  the 
Ostheimer  v.  Single,  73  N.  J.  Eq.  note.  It  was  held  that  the  cirrum- 
539.  Thus  where  a  father  conveyed  stances  raised  a  resulting  trust  as 
a  farm  to  his  married  daughter  upon  to  six-seventeenths  of  the  property 
consideration  of    a  note  and  mort-  but  that  there  could  be  no  resulting 

205 


§133. 


RESULTING   TRUSTS. 


[chap.  V. 


sequent  act  may  enlarge  its  effect,  as  by  removing  a  mortgage 
to  which  the  trust  was  subject.^    And  where  an  administrator 

1  Leonard  v.  Green,  34  Minn.  141. 


trust  for  the  son  as  to  the  balance 
unless  he  had  induced  the  father  to 
give  the  mortgage  to  enable  him  to 
make  the  purchase  in  the  father's 
name,  and  had  promised  to  pay  it, 
so  that  the  mortgage  note  was  in 
substance  the  son's  debt  as  between 
the  two. 

But  in  Gray  ;;.  Jordan,  87  Me. 
140,  where  a  husband  purchased  in 
the  name  of  his  wife  paying  no 
money  down,  but  giving  mortgage 
notes  of  the  wife  indorsed  by  him 
with  the  understanding  between  him 
and  his  wife  that  he  should  pay  the 
mortgage  notes,  which  he  subse- 
quently did,  a  trust  was  held  to 
result  for  the  husband.  In  Gilchrist 
V.  Brown,  165  Pa.  St.  275,  the  court 
in  a  dictum  expressed  the  opinion 
that  a  trust  would  result  for  the  wife 
from  her  payment  of  instalments  of 
the  purchase  price  after  the  convey- 
ance to  her  husband,  "provided  such 
payments  are  made  in  pursuance 
of  the  contract  under  which  the  title 
was  acquired  and  upon  the  agree- 
ment that  she  is  to  recover  the  title 
to  so  much  as  she  pays  for  in  ex- 
change for  her  money."  See  also 
Levy  V.  Mitchell,  114  S.  W.  172 
(Tex.  Civ.  App.  1908). 

The  effect  of  these  decisions  is 
that  although  the  actual  payments 
may  be  subsequent  to  the  passing 
of  the  title,  the  effect  of  the  under- 
standing existing  at  the  time  title 
was  taken  is  that  the  person  paying 
has  entered  into  an  obUgation  to 
pay,  which  in  substance  makes  the 
title  holder  only  a  surety  as  to  the 
subsequent  payments. 
206 


Merely  showing  a  subsequent 
payment  of  purchase  money  by  the 
person  for  whose  benefit  the  pur- 
chase was  intended  will  not  be 
enough.  There  must  be  at  least  a 
real  understanding  or  a  hability 
to  pay  which  dates  back  to  the  time 
when  the  legal  title  passed.  Os- 
theimer  v.  Single,  73  N.  J.  Eq.  539. 

The  assumption  of  an  incum- 
brance debt  by  the  grantee  as  part 
of  the  consideration  of  the  transfer 
will  not  prevent  the  whole  bene- 
ficial interest  from  passing  to  an- 
other on  a  resulting  trust  if  it  was 
understood  that  the  latter  should 
pay  the  encumbrance  and  he  sub- 
sequently does  so.  Skahen  v.  Irving, 
208  111.  597.  See  also  Crowley  v. 
Crowley,  72  N.  H.  241. 

In  case  of  an  executory  contract 
of  sale,  title  to  pass  at  the  time  of 
the  last  payment,  a  trust  may  result 
from  any  one  of  the  payments  made 
prior  to  the  passing  of  the  title. 
Lynch  v.  Herrig,  32  Mont.  267. 
The  same  is  true  of  payments  made 
for  a  bond  for  title.  Scranton  v. 
Campbell,  45  Tex.  Civ.  App.  388; 
Miller  v.  Saxton,  75  S.  C.  237. 

Use  of  funds  of  another  than  the 
owner  to  improve  the  property  will 
not  raise  a  resulting  trust;  Clark 
V.  Timmons,  39  S.  W.  534  (Tenn. 
1897) ;  although  equity  may  under 
some  circumstances  declare  an  eq- 
uitable lien  upon  the  property  for 
the  amount  expended,  as  where  a 
fiduciary  uses  funds  of  another  to 
improve  the  property  or  to  pay  an 
incumbrance.  Lehman  v.  Lewis, 
62  Ala.   129;  Webb.  v.  Bailey,  41 


CHAP,  v.]  PURCHASE    WITH    TRUST-MONEY.  [§  133. 

out  of  the  assets  in  his  hands  pays  the  balance  due  on  land 
bought  by  the  deceased,  and  takes  title  to  himself,  the  heirs  can 
hold  him  as  a  trustee.^  And  where  the  money  of  another  in  the 
hands  of  the  purchaser  is  his  only  reliance  for  procuring  the 
title,  he  cannot  escape  from  a  resulting  trust  by  payi'ng  a  little 
of  his  own  money  at  the  time,  and  the  remainder  in  trust-money 
afterward.^  If  two  agree  to  purchase,  and  one  furnishes  all  the 
money  and  takes  the  title  to  himself,  no  trust  results  to  the 
other.'  And  so  if  two  agree  to  purchase,  and  one  pays  the  whole 
consideration-money,  and  the  title  is  taken  to  the  two,  no  trust 
results  to  the  one  who  paid  the  whole;  he  can  only  enforce  re- 
payment of  one-half  the  consideration-money.^  There  must  be 
an  actual  payment  from  a  man's  own  money,  or  what  is  equiv- 
alent to  payment  from  his  own  money,  to  create  a  resulting 
trust.*  (a)    And  the  money  must  be  advanced  and  paid  in  the 

'  Jones  V.  Slaughter,  96  N.  C.  541.  [Julius  Locheim  &  Co.  v.  Eversole, 
93  S.  W.  52  (Ky.)  1906.1 

2  McLaughlin  t'.  Fulton,  104  Penn.  St.  161. 

3  Brooks  V.  Fowlc,  24  N.  H.  248;  Tebbetts  v.  Tilton,  31  N.  H.  273;  Ed- 
wards V.  Edwards,  39  Penn.  St.  369;  Coppage  v.  Bamett,  34  Miss.  621; 
Cook  V.  Bronaugh,  8  Eng.  183;  Fowke  v.  Slaughter,  3  A.  K.  Marsh.  56. 
(As  to  constructive  trusts  in  such  cases,  see  infra,  §  206,  note.] 

*  2  Sugd.  V.  &  P.  575  (13th  ed.);  but  see  Butler  v.  Rutledge,  2  Cold.  4. 

^  Wheeler  v.  Kirtland,  23  N.  J.  Eq.  13;  Tunnard  i'.  Littell,  id.;  Roberts 
V.  Ware,  40  Cal.  634;  Page  v.  Page,  8  N.  H.  187;  Gomez  i'.  Tradesman's 
Bank,  4  Sandf.  S.  C.  106;  Coates  v.  Woodworth,  13  111.  634;  Beck  v.  Gray- 
bill,  4  Casey,  66;  Reeve  v.  Strawn,  14  111.  94;  Ferguson  v.  Sutphen,  3  Gil. 
547;  Lounsbury  v.  Purdy,  16  Barb.  380;  Runnellsf.  Jackson,  1  How.  (Miss.) 
358;  Harrisburg  Bank  v.  Tyler,  3  Watts  &  S.  373;  Morey  v.  Herrick,  18  Penn. 

W.  Va.  463;  Mayer  v.  Kane,  69  N.  J.  sheriff's  sale  of  the  husband's  prop- 

Eq.  733;  Aiken  v.  Taylor,  62  S.  W.  erty  on  execution,  a  deed  was  exe- 

200  (Tenn.  Ch.  App.  1900) ;  Myers  cuted  to  the  wife  for  a  consideration 

V.   Myers,  47  W.  Va.  487.    See  also  paid  by  her,  not  only  was  the  deed 

Green  v.  Green,  56  S.  C.  193;  Barger  void,   but   the  wife's   paj^ment  did 

V.  Barger,  30  Or.  268;  Leary  v.  Cor-  not  impress  the  land  with  a  trust, 

vin,  181  N.  Y.  222.  See,  infra,  §  837.  since    the   title   was   not  conveyed 

No  trust  can  result  unless  there  out  of  the  husband.     Livingstone  t'. 

is  an  actual  conveyance  of  the  prop-  Murphy,  187  Mass.  315. 

erty  paid  for  by  the  alleged  cestui.  {a)  The  payment  need  not  be  in 

Thus  where  in  Massachusetts  upon  a  money,  but  the  resulting  trust  may 

207 


§  133,]  RESULTING   TRUSTS.  [CHAP.  V. 

character  of  a  purchaser;  for  if  one  pay  the  purchase-money  by 
way  of  loan  for  another,  and  the  conveyance  is  taken  to  the 
other,  no  trust  will  result  to  the  one  who  thus  pays  the  purchase- 
money;  ^  on  the  other  hand,  if  one  should  advance  the  purchase- 
money  and  take  the  title  to  himself,  but  should  do  this  wholly 
upon  the  account  and  credit  of  the  other,  he  would  hold  the 
estate  upon  a  resulting  trust  for  the  other .^    And  if  partly  on  the 

St.  123;  Smith  v.  Sackett,  5  Gilm.  534;  Kelly  v.  Johnson,  28  Mo.  249;  Bots- 
ford  V.  Burr,  2  Johns.  Ch.  405;  Getman  v.  Getman,  1  Barb.  Ch.  499;  Wright 
V.  King,  Harr.  Ch.  12;  Bernard  v.  Bongard,  Harr.  Ch.  130;  Dudley  v.  Bat- 
chelder,  53  Me.  403;  Russell  v.  Allen,  10  Paige,  249;  Kirkpatrick  v.  Mc- 
Donald, 1  Jones,  393;  Smith  v.  Burnham,  3  Sumner,  435;  White  v.  Sheldon, 
4  Nev.  280;  Kendall  v.  Mann,  11  Allen,  15. 

1  Bartlett  i;.  Pickersgill,  1  Eden,  516;  Crop  v.  Norton,  9  Mod.  235; 
White  V.  Carpenter,  2  Paige,  217;  Henderson  v.  Hoke,  1  Dev.  &  Bat.  Ch. 
119;  Dudley  v.  Batchelder,  53  Maine,  403;  Gibson  v.  Toole,  40  Miss.  788; 
Whaley  v.  Whaley,  71  Ala.  162;  Harvey  v.  Pennypacker,  4  Del.  Ch.  445; 
Boehl  V.  Wadgymar,  54  Tex.  589. 

2  Aveling  v.  Knipe,  19  Ves.  441;  Page  v.  Page,  8  N.  H.  187;  Runnells  v. 
Jackson,  1  How.  (Miss.)  358;  Lounsbury  v.  Purdy,  18  N.  Y.  515;  16  Barb. 
380;  Buck  v.  Pike,  2  Fairf.  9;  Morey  v.  Herrick,  18  Penn.  St.  123;  Stucky 
V.  Stucky,  30  id.  546;  Kelly  v.  Johnson,  28  Mo.  249;  Cutler  v.  Tuttle,  19 
N.  J.  Eq.  562;  Dryden  v.  Hanaway,  3  Md.  254;  Fleming  v.  McHale,  47 
111.  282;  Honore  v.  Hutchins,  8  Bush,  687;  Bates  v.  Kelley,  80  Ala.  142; 
Ward  V.  Matthews,  73  Cal.  13;  Caruthers  v.  Williams,  21  Fla.  485;  Green 
V.  Dietrich,  114  111.  636;  Bradley  v.  Luce,  99  111.  234.    As  where  the  lende*- 

be  based  upon  anything  of  value  a  husband  took  a  conveyance  of 
furnished  by  the  cestui  as  part  or  property  to  which  his  wife  was  en- 
all  of  the  consideration  for  the  pur-  titled  under  her  father's  will.) 
chase.  Garten  v.Trobridge,  80  Kan.  Hayes  v.  Carroll,  74  Minn.  134, 
720;  Gaynor  v.  Quinn,  212  Pa.  St.  and  Barlow  v.  Barlow,  47  Kan.  676, 
362;  McCormick  i'.  Cooke,  199  Pa.  (where  the  wife  was  equitably  en- 
St.  631  (cases  where  the  considera-  titled  to  the  conveyance  under  the 
tion  was  a  debt  due  from  the  grantor  homestead  law) ;  Reinhart  v.  Brad- 
to  the  cestui) ;  Dana  v.  Dana,  154  shaw,  19  Nev.  255  (where  one  of 
Ma8s.491(bricksownedbythecesfm);  two  jointly  entitled  to  the  property 
Fay  y.  Fay,50  N.  J.  Eq.  260;  Light  ii.  under  the  homestead  law  procured 
Zeller,  144  Pa.  St.  570,  582;  Butler  a  conveyance  to  himself).  See  also 
V.  Carpenter,  163  Mo.  597  (the  Sweesey  v.  Sparling,  81  Iowa,  433 
release  of  a  previous  interest  in  the  Brundy  v.  Mayfield,  15  Mont.  201 
same  property).  See  also  Condit  Moultrie  v.  Wright,  154  Cal.  520 
V.  Bigelow,  64  N.  J.  Eq.  504  (where  Hendrichs  v.  Morgan,  167  Fed.  106 

208 


CHAP,  v.] 


PURCHASE    WITH    TRUST-MONEY. 


[§  133. 


account  and  credit  of  another,  he  would  hold  as  trustee  yro 
tanto^  (a) 

takes  the  title  merely  as  security  for  his  advance.  Wright  t;.  Gay,  101  111. 
233;  Powell  t^.  Powell,  114  111.  329.  See  also  Weekly  i;.  Ellis,  30  Kans.  507; 
Tenny  v.  Simpson,  37  Kans.  353;  Wiggin  v.  Wiggin,  58  N.  H.  235. 

^  Marvin  v.  Brooks,  94  N.  Y.  71;  Leggett  v.  Leggett,  88  N.  C.  108; 
Brown  v.  Cave,  23  S.  C.  251;  Mims  v.  Chandler,  21  S.  C  480;  Cook  v. 
Sherman,  4  McCrary,  20. 


(a)  A  loan  to  the  title  taker  for 
the  purpose  of  buying  the  property 
cannot  be  the  basis  of  a  resulting 
trust  as  to  any  interest  in  the  prop- 
erty, even  though  the  borrower 
has  agreed  by  parol  that  the  prop- 
erty shall  be  security  for  the  re- 
payment of  the  loan.  Pain  v.  Far- 
son,  179  111.  185;  Fike  v.  Ott,  76 
Neb.  439;  Comman's  Estate,  197 
Pa.  St.  125;  Harris  v.  Elliott,  45 
W.  Va.  245;  Crawford  v.  Crawford, 
77  S.  C.  205;  Stokes  v.  Clark,  131 
Ga.  583.  See  also  Butterfield  v. 
Butterfield,  79  Ark.  164.  And  the 
fact  that  payment  of  the  purchase- 
money  comes  directly  from  the 
lender  is  not  material  when  it  is 
established  that  the  transaction 
was  in  substance  a  loan  to  the  title 
taker.  Milner  v.  Stanford,  102  Ala. 
277. 

Where  the  lender  takes  the  title 
in  himself,  the  fact  that  the  entire 
purchase-money  has  come  directly 
from  him  does  not  exclude  parol 
proof  that  all  or  part  of  it  was  lent 
to  another;  and  if  this  fact  is  es- 
tablished there  is  sufficient  basis 
for  a  resulting  trust,  if  the  parties 
intended  that  the  property  or  a 
definite  interest  in  it  should  be 
held  for  the  borrower.  Thus  where 
A.  lends  the  purchase-money  to  B. 
and  conveyance  is  made  directly 
to  A.  to  hold  merely  as  security  for 

VOL.  I.  —  14 


payment  of  the  loan,  a  trust  results 
for  the  benefit  of  B.  Miller  v.  Mil- 
ler, 101  Md.  600;  Hirshfeld  t;.  How- 
ard, 59  S.  W.  55  (Tex.  Civ.  App. 
1900);  Dooly  v.  Pinson,  39  So.  664 
(Ala.);  Martin  v.  N.  Y.,  etc.  Co., 
165  Fed.  398;  Pittock  v.  Pittock, 
15  Idaho,  426;  Payne  v.  McClure 
Lodge,  115  S.  W.  764  (Ky.  1909); 
Schrager  t-.  Cool,  221  Pa.  St.  622. 
Where  A.  and  B.  agree  orally  that 
land  shall  be  purchased  on  joint 
account,  and  A.  advances  the  en- 
tire purchase-money,  and  takes  the 
title  in  his  own  name,  but  upon  an 
understanding  that  one-half  the 
amount  shall  be  a  loan  to  B.,  he 
holds  an  undivided  one-half  interest 
upon  a  resulting  trust  for  B.,  since 
equity  regards  that  portion  of  the 
consideration  as  paid  by  B.  Towle 
V.  Wadsworth,  147  111.  80;  Holliday 
V.  Perry,  38  Ind.  App.  588;  HerUhy 
V.  Coney,  99  Me.  469;  Stitt  v.  Rat 
Portage  Co.,  96  Minn.  27.  See 
also  Jones  v.  Beekman,  47  A.  71 
(N.  J.  Ch.  1900). 

In  Hcrhhy  v.  Coney,  99  Me.  469, 
the  principle  is  well  stated  as  fol- 
lows: "A  resulting  trust  arises  by 
impUcation  of  law  when  the  pur- 
chase-money is  paid  by  one  person 
out  of  his  own  money,  and  the  land 
is  convej^ed  to  another.  It  may 
be  paid  by  the  cestui  que  trust  him- 
self.    It    may  be  paid  by  another 

209 


§  134.]  RESULTING   TRUSTS.  [CHAP.  V. 

§  134.  A  trust  results  from  the  acts,  and  not  from  the  agree- 
ments, of  the  parties,  or  rather  from  the  acts  accompanied  by 
the  agreements;  but  no  trust  can  be  set  up  by  mere  parol 
agreements,  or,  as  has  been  said,  no  trust  results  merely  from  the 
breach  of  a  parol  contract;  as  if  one  agrees  to  purchase  land  and 
give  another  an  interest  in  it,  and  he  purchases  and  pays  his  own 
money,  and  takes  the  title  in  his  own  name,  no  trust  can  result.^ 
And  so  if  a  party  makes  no  payment,  and  none  is  made  on  his 
account,  either  actually  or  constructively,  he  cannot  claim  a 
resulting  trust.^    As  where  a  father  made  a  deed  to  a  son-in-law, 

1  Kisler  v.  Kisler,  2  Watts,  323;  WiUiard  v.  Williard,  56  Pa.  St.  119; 
Loomis  V.  Loomis,  60  Barb.  22;  Stover  v.  Flack,  41  Barb.  162;  Thomer 
V.  Thorner,  18  Ind.  462;  Rogers  v.  Simmons,  55  111.  66;  Loomis  v.  Loomis, 
28  lU.  454;  Green  v.  Cook,  2  111.  196;  Duffy  v.  Masterson,  44  N.  Y.  557; 
Whetham  v.  Clyde,  1  Pa.  Leg.  Gaz.  R.  55.  But  see  Hidden  v.  Jordan,  21 
Cal.  92;  Green  v.  Drummond,  3  Md.  71;  Meason  ;;.  Kaine,  63  Penn.  St. 
335;  Smith  v.  Hollenback,  53  111.  223;  Lantry  v.  Lantrj-,  51  111.  451;  Robin- 
son V.  Robinson,  45  Ark.  481;  Hunt  v.  Freedman,  63  Cal.  510;  see  §  209. 
Ward  V.  Spivey,  18  Fla.  847;  FoUett  v.  Badeau,  26  Mun,  253;  Lawrence  v. 
Lawrence,  14  Oregon,  77.  [  Butts  v.  Cooper,  152  Ala.  375;  Banes  v.  Morgan, 
204  Pa.  St.  185;  Withnell  v.  Withnell,  69  Neb.  605.]  A  trust  resulting  from 
the  acts  of  the  parties  will  not  be  converted  into  an  express  trust  by  the 
agreement  of  the  parties;  that  is,  it  will  not  be  any  the  less  a  resulting  trust, 
and  it  will  not  be  within  the  statute  of  frauds.    Cotton  v.  Wood,  25  Iowa,  43. 

*  Jackson  v.  Ringland,  4  Watts  &  S.  149;  Botsford  v.  Burr,  2  Johns.  Ch. 
408;  Lathrop  v.  Hoyt,  7  Barb.  60;  Dorsey  v.  Clark,  4  Har.  &  J.  551;  Smith 
V.  Smith,  3  Casey,  180;  FischiU  v.  Dumaresly,  3  Marsh.  23;  Sharp  v.  Long, 

for  him.     It  may  be  paid  for  him  The  burden  of  proving  that  all 

by  the  trustee.    But  the  money  must  or  part  of  the  purchase-money  was 

belong   to   the   cestui   que   tritst   in  advanced  as  a  loan  in  such  a  case 

specie,  or  by  its   payment   by  the  is    upon    the    person    claiming    an 

hands   of    another    he   must    incur  interest   in   the   property.      It   will 

an  obligation  to  repay,  so  that  the  not  be  inferred  from  the  bare  fact 

consideration  actually  moves  from  of  a  parol  agreement  to  purchase 

him   at   the   time.      He   may   take  and  hold  an  interest  in  the  property 

money  from  his  purse,  or  he  may  for    him.      There    must    be    other 

borrow  it,   and  he  may  borrow  it  evidence  of  a  definite  understanding 

from  the  trustee.    And  if  the  lender  that  the   transaction   shall   raise  a 

pays  the  money  borrowed  for  the  debt  between  the  two.    Crawford  v. 

borrower,  the  borrower  pays  it.    The  Crawford,  77  S.  C.  205;  Bourke  v. 

test  is  whose  money  pays  the  con-  Callanan,   160  Mass.  195.     See  also 

sideration   for   the    purchase."  Norton  v.  Brink,  75  Neb.  566. 

210 


CHAP,  v.]  PAROL    PROOF.  [§   135. 

in  consideration  of  love  and  affection  for  his  daughter,  no  trust 
resulted.*  (a)  And  so  a  mere  parol  declaration  by  one  that  he 
is  buying  land  for  another  is  not  sufficient  to  estabhsh  a  resulting 
trust;  there  must  be  some  proof  of  an  actual  or  constructive 
payment  by  the  person  claiming  such  a  trust.^  The  rule  is 
otherwise  if  the  promise  led  the  plaintiff  to  take  action  he  would 
not  otherwise  have  taken.  Then  the  breach  of  the  promise  be- 
comes a  fraud,  and  a  trust  may  exist.^ 

§  135.  Again,  parol  proof  cannot  be  received  to  establish  a 
resulting  trust  in  lands  purchased  by  an  agent  and  paid  for  by 
his  own  funds,  no  money  of  the  principal  being  used  for  the 
payment;  for  the  relation  of  principal  and  agent  depends  upon 
the  agreement  existing  between  them,  and  the  trust  in  such  a  case 
must  arise  from  the  agreement,  and  not  from  the  transaction, 
and  where  a  trust  arises  from  an  agreement,  it  is  within  the 

4  Casey,  434;  Thompson  v.  Branch,  Meige,  390;  Walker  v.  Brungard,  13 
S.  «fe  M.  723;  Ensley  v.  Ballentine,  4  Humph.  233;  Lynn  v.  Lynn,  5  Gil.  602; 
Sample  v.  Coulson,  9  Watts  &  S.  62;  Peebles  v.  Reading,  8  Ser.  &  R.  484. 
[  Mcintosh  t'.  Green,  25  App.  D.  C.  456;  Byers  &  Co.  v.  McEniry,  117  Iowa, 
499  (where  a  debtor  conveyed  to  one  of  his  creditors  upon  the  latter's  parol 
agreement  to  apply  the  surplus  to  the  claims  of  other  creditors);  Monson 
V.  Hutchin,  194  111.  431;  Bourke  v.  Callanan,  160  Mass.  195.) 

^  Thompson  v.  Thompson,  18  Ohio  St.  73.  [Acker  v.  Priest,  92  Iowa, 
610;  Noe  v.  Roll,  134  Ind.  115;  Higbee  v.  Higbee,  123  Mo.  287;  Lewis  v. 
Stanley,  148  Ind.  351.] 

«  Ibid.;  Kisler  v.  Kisler,  2  Watts,  323;  Williard  f.  Williard,  56  Penn. 
St.  119. 

»  See  §  171  et  acq. 

(o)  Or  where  a  husband  makes  Handlan  f.  Handlan,  42  W.  Va.  309; 

a  voluntary  conveyance  to  his  wife  Taylor  v.  Miles,  19  Or.  550;  Lane  v. 

through    the    medium    of    a    third  Lane,  80  Me.  570.    Likewise,  where 

person.     Apart   from   the   question  a  mother  and  father  convey  to  a 

of  intention  no  trust  for  the  hus-  daughter  upon  a  parol  trust  as  to 

band  can  result  from  the  conveyance  one-half  for  an  infant  son  no  trust 

by   the  third    person  to    the  wife,  results.      Peterson   v.    Boswell,    137 

since    no     consideration     is    paid.  Ind.  211.    As  to  constructive  trusts 

Moore  v.  Horsley,  156  111.  36;  in  such  a  case,  see  infra,  §  181,  note 
Crawley  v.  Crafton,   193  Mo.  421; 

211 


§  135.]  RESULTING   TRUSTS.  [cHAP.  V. 

statute  of  frauds,  and  must  be  in  writing.^  (a)  This  rule  is  so 
inflexible,  that  though  the  agent  may  be  indicted,  and  convicted 
of  perjury  in  denying  his  character  as  agent  in  his  answer  under 
oath,  the  court  cannot  decree  and  establish  the  trust.^  But  if  an 
agent  invest  his  principal's  money  in  real  estate  without  his 
knowledge,  or  if,  investing  the  money  with  his  knowledge,  he 
take  the  deed  in  his  own  name  without  his  consent,  or  take  a 
deed  in  a  form  contrary  to  the  understanding,  there  will  be  a 
resulting  trust.^  But  if  one  standing  in  no  fiduciary  relation 
obtains  another's  property  wrongfully,  and  invests  it  in  land  in 
his  own  name,  or  if  a  clerk  appropriates  his  master's  money  and 
buys  real  estate  in  his  own  name,  there  is  no  resulting  trust.*  (b) 

*  Kennedy  v.  Keating,  34  Mo.  2.5;  WoodhuU  v.  Osborne,  2  Edw,  Ch. 
615;  Lathrop  v.  Hoyt,  7  Barb.  60;  2  Story,  Eq.  Jur.  §  1201  a;  Bartlett  v. 
Pickersgill,  1  Eden,  515;  4  Burr.  22;  1  Cox,  15;  4  East,  577;  Rastel  v.  Hutch- 
inson, 1  Dick.  44;  Lamas  v.  Bayley,  2  Vern.  627;  Atkins  v.  Rows,  Mose.  39; 
O'Hara  v.  O'Neil,  2  Bro.  P.  C.  39;  Jackman  v.  Ringland,  4  Watts  &  S.  149; 
Peebles  v.  Reading,  8  Ser.  &  R.  492;  Pinnock  v.  Clough,  16  Vt.  507;  Flagg 
V.  Mann,  2  Sum.  546;  Walker  v.  Brungard,  13  Sm.  &  M.  765;  Taliaferro  v. 
Taliaferro,  6  Ala.  406;  Moore  v.  Green,  3  B.  Mon.  407;  Fowke  v.  Slaughter, 
3  A.  K.  Marsh.  57;  Dorsey  v.  Clarke,  4  Har.  &  J.  551;  Pearson  v.  East,  36 
Ind.  28;  Minot  v.  Mitchell,  30  Ind.  228;  Arnold  v.  Cord,  16  Ind.  177;  Graves 
V.  Ward,  2  Duv.  301;  Heacock  v.  Coatesworth,  Clarke,  84;  Burden  v.  Sheri- 
dan, 36  Iowa,  125;  Nestal  v.  Schmid,  29  N.  J.  Eq.  460.  But  where  an  at- 
torney purchased  property  sold  upon  an  execution  in  favor  of  his  client  at 
a  grossly  inadequate  price,  it  was  held  that  he  was  a  trustee  for  his  principal. 
Howell  D.Baker,  4  Johns.  Ch.  118.  See  Wade  v.  Pettibone,  11  Ohio,  57; 
14  Ohio,  557. 

2  Bartlett  v.  Pickersgill,  1  Eden,  515;  King  v.  Boston  4  East,  572. 

»  Day  V.  Roth,  18  N.  Y.  448;  Bridenbecker  v.  Lowell,  32  Barb.  9;  Pugh 
V.  Pugh,  9  Ind.  132;  Rothwell  v.  Dewees,  2  Black,  613;  Bruce  v.  Ronly,  18 
111.  67;  Follansbe  v.  Kilbreth,  17  111.  522;  Squire's  App.  70  Penn.  St.  268; 
Seichrist's  App.  66  id.  237.  So  if  he  take  the  deed  in  his  wife's  name,  a  knowl- 
edge by  the  principal  that  the  deed  is  so  made  will  not  affect  the  trust.  Bos- 
tleman  v.  Bostleman  and  Wife,  24  N.  J.  Eq.  103. 

*  Ensley  v.  Ballentine,  4  Humph.  233;  Campbell  v.  Drake,  4  Ired.  Eq. 
94.  But  where  A.  embezzled  B.'s  money  and  invested  it  in  stock  in  the 
name  of  C,  a  mere  volunteer,  a  resulting  trust  was  enforced  against  C.  in 

(o)  Butseein/ra,  §206  and  notes,  (b)  But  in  such   a  case  equity 

as  to   constructive   trusts   in   such  will  construct  a  trust  for  the  benefit 

cases.  of  the  person  whose  money  has  been 
212 


CHAP,  v.]  PAROL    PROOF.  [§  136. 

§  136.  In  England,  if  two  persons  join  in  a  purchase  and  con- 
tribute equally,  and  take  the  title  in  their  own  names,  there  is 
no  reason  to  presume  a  resulting  trust,  and  the  two  are  joint 
tenants,  the  survivor  taking  the  whole  jure  accrescendi}  And  so 
if  two  contract  for  a  purchase  to  them  and  their  heirs,  paying 
equal  proportions,  and  one  dies,  the  court  will  order  a  specific 
performance  by  a  conveyance  to  the  survivor  alone.^  But  the 
court  lays  hold  of  every  circumstance  to  defeat  the  joint  tenancy 
and  convert  it  into  a  tenancy  in  common.'  Thus,  where  two 
tenants  in  common  of  a  joint  mortgage  term  purchase  the  equity 
of  redemption,^  or  several  engage  in  a  joint  undertaking,  or 
partnership,  or  trade,  or  speculation,^  or  several  purchase  an 
estate  and  pay  equally,  but  one  improves  the  estate  at  his  own 

favor  of  B.  Bank  of  America  v.  Pollock,  4  Edw.  Ch.  415;  and  see  Paacoag 
Bank  v.  Hunt,  3  Edw.  215;  ajite,  §  128.  See  also  Newton  v.  Porter,  5  Lans. 
417. 

»  Robinson  v.  Preston,  4  K.  &  J.  505;  Bone  v.  Pollard,  24  Beav.  288; 
Moyse  v.  Gyles,  2  Vern.  385;  Hayes  v.  Kingdome,  1  Vem.  33;  York  v.  Eaton, 
2  Freem.  23;  Aveling  v.  Knipe,  19  Ves.  441;  Rigden  v.  Vallier,  3  Atk.  735; 
Lake  v.  Gibson,  1  Eq.  Gas.  Ab.  291 ;  Anon.,  Garth.  15;  Rea  t'.  Williams,  Sugd. 
V.  &  P.  (14th  ed.)  p.  [697];  Thicknesse  v.  Vernon,  2  Freem.  84. 

^  Aveling  v.  Knipe,  19  Ves.  441. 

'  Robinson  t^.  Preston,  4  K.  &  J.  505;  Tompkins  v.  Mitchell,  2  Rand. 
428;  Brothers  v.  Porter,  6  B.  Mon.  106;  Barribeau  v.  Brant,  17  How.  43. 

*  Edwards  v.  Fashion,  Pr.  Gh.  332;  Morly  v.  Bird,  3  Ves.  631;  Rigden 
V.  Vallier,  3  Atk.  734;  Vickers  v.  Cowell,  1  Beav.  629;  Partridge  i;.  Paw- 
lett,  1  Atk.  467;  Anon.,  Garth.  16;  Petty  v.  Styward,  1  Gh.  R.  57;  Randall 
V.  Phillips,  3  Mason,  378. 

"  Lake  i-.  Gibson,  1  Eq.  Gas.  Ab.  290;  3  P.  Wms.  158;  York  v.  Eaton, 
2  Freem.  23;  Jackson  v.  Jackson,  9  Ves.  597  n.;  Lyster  v.  DoUand,  1  Ves. 
Jr.  434;  Jeffreys  t>.  Small,  1  Vern.  217;  Gaines  v.  Grant,  5  Binn.  119;  Duncan 
t'.  Forrcr,  6  Binn.  193;  Sigourney  v.  Munn,  7  Gonn.  11;  Overton  v.  Lacy, 
6  Monroe,  13;  Deloney  v.  Hutcheson,  2  Rand.  183;  Guyler  v.  Bradt,  2  Gaines' 
Gas.  326;  Pugh  v.  Gurrie,  5  Ala.  446;  McAllister  v.  Montgomery,  3  Hayw. 
94;  Farley  v.  Shippen,  Wythe,  135.  See  Appleton  v.  Boyd,  7  Mass.  131; 
Kinsley  v.  Abbott,  19  Maine,  430. 

wrongfully  used,  if  the  money  can  property  which  he    haa  purchased 

be    traced.      Supra,    §    128,    note,  for  himself,  the  trust  is  constructive 

In  the  case  of  an  agent  wrongfully  rather  than  resulting.    Supra,  §  127, 

using  his  principal's  money,  right-  note;  infra,  §  206,  note  a. 
fully  in  his  possession,  to  pay  for 

213 


§  137.]  RESULTING   TRUSTS.  [CHAP.  V. 

cost/  equity  will  construe  them  to  be  tenants  in  common  and 
not  joint  tenants.  In  this  country,  title  by  joint  tenancy  is 
very  much  reduced  in  extent,  and  the  incident  of  survivorship 
is  almost  entirely  destroyed  by  statutes,  except  in  the  case  of 
trustees,  executors,  and  others,  in  whom  such  a  tenancy  is 
necessary  for  the  execution  of  their  trusts.^ 

§  137.  The  transaction  out  of  which  a  trust  results  maj^  be 
proved  by  parol.^  The  statute  of  frauds  extends  to  and  em- 
braces only  trusts  created  or  declared  by  the  parties,  and  does 
not  affect  trusts  arising  by  operation  of  law.*  (a)  Indeed,  such 
trusts  are  specially  excepted  in  the  statute  of  frauds  of  most 
States.  The  exception,  however,  was  omitted  in  the  statute  of 
Rhode  Island ;  but  Mr.  Justice  Story  held  that  the  omission  was 
immaterial,  as  such  trusts  were  excepted  in  the  nature  of  things.^ 

»  Lake  v.  Gibson,  1  Eq.  Gas.  291. 

*  See  4  Kent  Gom.  396  (11th  ed.). 

^  Livermore  v.  Aldrich,  5  Gush.  435;  Boyd  v.  McLean,  1  Johns.  Gh.  582; 
Verplank  v.  Gaines,  id.  57;  Botsford  v.  Burr,  2  id.  405;  Gh.  57;  Page  v.  Page, 
8  N.  H.  187;  Scoby  v.  Blanchard,  3  N.  H.  170;  Pritchard  v.  Brown,  4  N.  H. 
397;  Gardner  Bank  v.  Wheaton,  8  Greenl.  373;  Powell  v.  Monson  &  Brim. 
Manuf.  Go.,  3  Mason,  347;  ElUott  v.  Armstrong,  3  Blackf.  199;  Jennison 
V.  Graves,  id.  441;  Blair  v.  Bass,  4  id.  550;  SnelUng  v.  Utterback,  1  Bibb, 
609;  Foote  v.  Bryant,  47  N.  Y.  544;  McGinity  v.  McGinity,  6  Penn.  St.  38; 
Peiffer  v.  Lytle,  58  id.  386;  Nixon's  App.,  63  id.  277;  Byers  v.  Wackman, 
16  Ohio,  80,  440;  Faris  v.  Dunn,  7  Bush,  276;  GaldweU  v.  Galdwell,  7  Bush, 
515;  Morgan  v.  Glayton,  61  111.  35;  Knox  v.  McFarren,  4  Gol.  .586;  Learned 
V.  Tritch,  6  Gol.  432.  See  Barbin  v.  Gasford,  15  La.  An.  539.  [Schrager  v. 
Gool,  221  Pa.  St.  622;  Smithsonian  Institution  t'.  Meech,  169  U.  S.  398; 
Sutton  V.  Whetstone,  21  S.  D.  341.  But  see  Barrow  v.  Grant's  Estate,  116 
La.  9.52.] 

*  Ross  V.  Hegeman,  2  Edw.  Gh.  373;  Larkin  i;.  Rhodes,  5  Porter,  196; 
Enos  V.  Hunter,  4  Gil.  211;  Smith  v.  Sackett,  5  Gilm.  .544;  Foote  v.  Bry- 
ant, 47  N.  Y.  544;  Black  v.  Black,  4  Pick.  238;  Bryant  v.  Hendricks,  5 
Iowa,  256;  Judd  v.  Haseley,  22  Iowa,  428;  Ward  v.  Armstrong,  84  111.  151; 
Gale  V.  Harby,  20  Fla.  171. 

^  Hoxie  V.  Garr,  1  Sum.  187. 

(a)  This  appUes  to  that  clause      be  performed  within  a  year.     Rayl 
of  the  statute  which  prohibits  suits      v.  Rayl,  58  Kansas,  585. 
upon  unwritten  agreements  not  to 

214 


CHAP,  v.]  PAROL    PROOF.  [§  137. 

It  follows  that  a  party  setting  up  a  resulting  trust  may  prove 
by  parol  the  agreements  under  which  the  estate  was  purchased, 
and  he  may  prove  by  parol  the  actual  payment  of  the  purchase- 
money  by  himself,  or  in  his  behalf,  although  the  deed  states  it  to 
have  been  paid  by  the  grantee  in  the  conveyance.^  (a)  And  al- 
though the  holder  of  the  legal  title  has  fraudulently  or  by  mis- 
take made  a  declaration  that  he  holds  the  property  for  some 
other  person,^  or  states  it  to  be  for  the  use  of  the  grantor,^  and 
although  the  trust,  and  all  the  circumstances  out  of  which  it 
arises,  may  be  denied  under  oath  in  the  answer,  yet  the  facts 
may  all  be  proved  by  parol  in  opposition  to  the  answer.*  In  such 

>  DePeyster  v.  Gould,  2  Green,  Ch.  474;  Dismukes  v.  Terry,  Walk.  197; 
Peabody  v.  Tarbell,  2  Gush.  232;  Barron  v.  Barron,  24  Vt.  375;  Smith  v. 
Burnham,  3  Sum.  438;  Malin  v.  Malin,  1  Wend.  626;  Harder  v.  Harder, 
2Sandf.  Gh.  17;  Peircc  t^.  McKeehan,  3  Barr,  136;  Lloyd  v.  Garter,  17  Pa. 
St.  216;  Peebles  v.  Reading,  8  Serg.  &  R.  484;  Millard  v.  Hathaway,  27  Gal. 
119;  Lyford  v.  Thurston,  16  N.  H.  399;  Bayles  v.  Baxter,  22  Gal.  575;  Gooper 
V.  Skeele,  14  Iowa,  578.  [Lynch  v.  Herrig,  32  Mont.  267;  Long  v.  Mechem, 
142  Ala.  405;  McMurray  v.  McMurray,  180  Mo.  526;  Howard  v.  Howard, 
52  Kan.  469;  Snider  v.  Johnson,  25  Or.  328;  Boyd  v.  Boyd,  163  111.  611 ;  G.  B. 
&  Q.  R.  Go.  V.  First  Nat.  Bank,  58  Neb.  548;  WithneU  i-.  Withnell,  69  Neb. 
605.]  In  Kirk  v.  Webb,  Pr.  Gh.  84,  the  court  refused  to  admit  parol  evi- 
dence to  control  the  recitals  of  the  deed  as  to  the  payment  of  the  consider- 
ation, and  this  decision  was  followed  in  Heron  v.  Heron,  Pr.  Gh.  163;  Freem. 
248;  Skitt  v.  Whitmore,  Freem.  280;  Kinder  v.  Miller,  Pr.  Gh.  172;  Newton 
V.  Preston,  id.  103;  Hooper  v.  Eyles,  2  Vern.  480;  Gox  v.  Bateman,  2  Ves.  19; 
Ambrose  v.  Ambrose,  1  P.  Wms.  321;  Deg  v.  Deg,  2  id.  414;  but  the  rule  has 
been  changed,  and  the  doctrine  stated  in  the  text  is  now  established  beyond 
controversy.  Bartlett  v.  Pickersgill,  1  P^den,  515;  Lench ;-.  Lench,  10  Ves.  517; 
Groves  v.  Groves,  3  Y.  &  J.  163;  See  2  Story,  Eq.  Jur.  §  1201,  and  notes; 
Livermore  v.  Aldrich,  5  Gush.  435;  Gonnor  v.  FoUansbee,  59  N.  H.  125. 
[Brooks  V.  Union  Trust,  etc.  Go.,  146  Gal.  134.] 

^  Hanson  v.  First  Presbyterian  Ghurch,  1  Stock.  441. 

'  Gotton  V.  Wood,  25  Iowa,  43. 

*  Gooth  V.  Jackson,  6  Ves.  39;  Buck  v.  Pike,  2  Fairf.  24;  Baker  v.  Vining, 
30  Me.  121;  Page  v.  Page,  8  N.  H.  187;  Moore  v.  Moore,  38  N.  H.  382;  Boyd 
('.  McLean,  1  Johns.  Gh.  582;  Botsford  v.  Burr,  2  id.  405;  Swinburne  v.  Swin- 
burne, 28  N.  Y.  568;  Snelling  v.  Utterback,  1  Bibb,  609;  Lloyd  v.  Lynch, 

(a)  And  he  may  prove  by  parol  the  cestui  as  the  debt  of  the  latter, 

that  a  purchase-money  note  signed  Small  v.  Hatch,  151  Mo.  300.     See 

by  the  grantee  was  intended   and  Levy   v.    Mitchell,    114   S.    W.    172 

treated  as  between  the  grantee  and  (Tex.  Giv.  App.  1908.). 

215 


§  137.]  RESULTING    TRUSTS.  [CHAP.  V. 

case  the  trust  must  be  clearly  alleged  in  the  bill,  not  only  in 
terms,  but  all  the  facts  must  be  set  out  from  which  the  trust  is 
claimed  to  result.*  (a)  General  vague  statements  of  a  testator 
that  the  land  he  owned  was  the  "security  or  property  held  in 
trust  by  him  for  the  payment  of  the  trust  fund,"  will  not  be 
sufficient  to  impress  a  trust  on  the  property  in  the  absence  of 
clear  evidence  that  trust  funds  were  used  in  the  purchase  of 
the  land.^  The  facts  in  all  cases  must  be  proved  with  great 
clearness  and  certainty,^  especially  when  the  claim  depends  upon 

28  Pa.  St.  419;  Letcher  v.  Letcher,  4  J.  J.  Marsh.  590;  Miller  v.  Stokely, 

5  Ohio  St.  194;  Elliott  v.  Armstrong,  2  Blackf.  198;  Jenison  v.  Graves,  id.  440; 
Blair  v.  Bass,  4  id.  540;  Larkins  v.  Rhodes,  5  Porter,  196;  Farringer  v.  Ram- 
sey, 2  Md.  365;  Greer  v.  Baughman,  13  Md.  257;  Ensley  v.  Ballentine,  4 
Humph.  233;  Paine  v.  Wilcox,  16  Wis.  202;  Olive  v.  Dougherty,  3  Iowa, 
371;  Vandever  t;.  Freeman,  20  Tex.  333;  Pugh  v.  Bell,  1  J.  J.  Marsh.  399. 

1  Rowell  V.  Freese,  23  Maine,  182;  Hickey  v.  Young,  1  J.  J.  Marsh.  1; 
Gascoigne  v.  Thwing,  1  Vern.  366;  Rider  v.  Kidder,  20  Ves.  364;  Groves  v. 
Groves,  3  Y.  &  J.  163;  Halcott  v.  Morkant,  Pr.Ch.  168;  Goodright  v.  Hodges, 
1  Watk.  Corp.  229;  Willis  v.  WilUs,  2  Atk.  71.  [Byers  v.  Femer,  216  Pa.  St. 
233.] 

*  Cuming  v.  Robins,  39  N.  J.  Eq.  46. 

='  Cuming  v.  Robins,  39  N.  J.  Eq.  46;  Slocumb  v.  Marshall,  2  Wash. 
C.  C.  397;  Newton  v.  Preston,  Pr.  Ch.  103;  Wright  v.  King,  Harr.  Ch.  12; 
Enos  V.  Hunter,  4  Gilm.  211;  Carey  v.  Callan,  6  B.  Mon.  44;  O'Hara  v. 
O'Neil,  2  Eq.  Cas.  Ab.  475;  Cottington  v.  Fletcher,  2  Atk.  155;  Ambrose 
V.  Ambrose,  1  P.  Wms.  321 ;  Hyden  v.  Hyden,  6  Baxter  (Tenn.),  406;  Thomas 
V.  Sandford,  49  Md.  181;  Johnson  v.  Richardson,  44  Ark.  365;  Harvey  v. 
Pennybacker,  4  Del.  Ch.  445;  Green  v.  Dietrich,  114  111.  636;  Witts  v.  Hor- 
ney,  59  Md.  584;  Philpot  v.  Penn.,  91  Mo.  38;  Rogers  t;.  Rogers,  87  Mo.  257; 
Shaw  V.  Shaw,  86  Mo.  594;  Modrell  v.  Riddle,  82  Mo.  31;  Parker  v.  Snyder, 
31  N.  J.  Eq.  164;  Brickell  v.  Earley,  115  Penn.  St.  473.  As  to  what  facts 
are  competent  and  necessary  to  be  proved,  see  Hunter  v.  Marlboro',  2  Wood. 

6  M.  168;  Morey  v.  Herrick,  18  Penn.  St.  128;  Blyholder  v.  Gibson,  18  Pa. 
St.  134;  Farringer  v.  Ramsey,  4  Md.  Ch.  33;  Mahn  v.  Malin,  1  Wend.  626; 
Harder  v.  Harder,  1  Sandf.  17;  Snelling  v.  Utterback,  1  Bibb,  609;  Freeman 
V  Kelly,  1  Hoff.  90;  Baker  v.  Vining,  30  Me.  128;  Clarke  v.  Quackenboss, 
27  111.  260;  Nelson  v.  Warrall,  20  Iowa,  409;  WTiite  v.  Weldon,  4  Nev.  280; 
Stall  V.  Cincinnati,  16  Ohio  St.  169;  Browne  v.  Stamp,  21  Md.  328;  Holder 

(a)  Thus     where     the     petition  the   presumption    of   gift    must   be 

alleged  that  the  land  was  purchased  averred.     Hoon  v.  Hoon,  126  Iowa, 

by  a  father  in  the  name  of  his  son,  391;  Long  v.  King,  117  Ala.  423. 
the  circumstances  relied  on  to  rebut 

216 


CHAP,  v.]  PAROL    PROOF.  [§  137. 

mere  statements ; '  and  facts  that  only  base  a  conjecture  that  the 
conditions  of  a  resulting  trust  existed,  are  insufficient.^  (a)  The 
certainty  required,  however,  is  only  such  as  is  sufficient  to 
satisfy  the  jury  of  the  existence  of  the  trust;  and  it  is  error  to 
charge  that  the  "clearest  and  most  positive  proof"  must  be 
given.^  (6)  For  this  purpose  all  competent  evidence  is  admissi- 
ble, as  the  admissions  of  the  nominal  purchaser  and  grantee  in 
the  deed,  recitals  in  the  deed  and  other  proper  documents,  and 
even  circumstantial  evidence,  as  that  the  means  of  the  nominal 
purchaser  were  so  limited  that  it  was  impossible  for  him  to  pay 

V.  Nunnelly,  2  Cold.  288;  Childs  v.  Gramold,  19  Iowa,  362;  Cutler  v.  Tuttle, 
19  N.  J.  Eq.  560;  Parmlee  v.  Sloan,  37  Ind.  469;  Phelps  v.  Seeley,  22  Grat. 
573;  Shepard  v.  Pratt,  32  Iowa,  296.  [  Holloway  v.  Wilkerson,  150  Ala.  297; 
Dooley  v.  Pinson,  39  So.  664  (Ala.  1905);  Woodside  v.  Hewel,  109  Cal.  481; 
Marshall  v.  Fleming,  11  Colo.  App.  515;  Keith  v.  Miller,  174  111.  64;  Francis 
V.  Roades,  146  111.  635;  McGinnis  v.  Jacobs,  147  111.  24;  Jacksonville  Bank 
V.  Beesley,  159  111.  120;  Pillars  t;.  McConnell,  141  Ind.  670;  Cunningham  v. 
Cunningham,  125  Iowa,  681,  687;  Malley  v.  Mallcy,  121  Iowa,  237;  Logan 
V.  Johnson,  72  Miss.  185;  Reed  v.  Painter,  129  Mo.  674;  Smith  v.  Smith, 
201  Mo.  533;  Carter  v.  Carter,  14  N.  D.  66;  Snider  v.  Johnson,  25  Or.  328; 
Cornman's  Estate,  197  Pa.  St.  125;  dinger  v.  Shultz,  183  Pa.  St.  469;  Fow- 
ler V.  Webster,  180  Pa.  St.  610;  Brickell  v.  Earley,  115  Pa.  St.  473;  Reynolds 
V.  Blaisdell,  23  R.  I.  16;  Gaines  v.  Drakeford,  51  S.  C.  37;  Chambers  v.  Emery, 
13  Utah,  374;  Parker  v.  Logan,  82  Va.  376;  Spencer  v.  Terrel,  17  Wash. 
514;  Gilbert  v.  Lawrence,  56  W.  Va.  281,  292.] 

'  Heneke  v.  Floring,  114  111.  554;  McKeown  v.  McKeowTi,  33  N.  J.  Eq. 
384. 

2  Railsback  v.  Williamson,  88  111.  497.  [  Holloway  v.  Wilkerson,  150  Ala. 
297;  Malley  v.  Malley,  121  Iowa,  237;  Crawford  v.  Crawford,  77  S.  C.  205.] 

'  Neyland  v.  Bendy,  69  Tex.  711. 

(a)  A  mere  statement  of  the  Cunningham,  125  Iowa,  681;  Cham- 
title  holder  that  he  had  used  funds  bers  v.  Emerj',  13  Utah,  374;  and 
of  his  ward  in  the  purchase  of  land  even  that  the  necessarj-  facts  must 
is  not  sufficient  evidence  on  which  be  established  beyond  a  reasonable 
to  base  a  resulting  trust  since  it  doubt.  Reed  v.  Painter,  129  Mo. 
does  not  identify  what  land  he  had  674;  Reed  v.  Sperry,  193  Mo.  167. 
purchased  with  such  funds.  Gar-  But  these  statements  seem  to  go 
rett  V.  Garrett,  171  Mo.  155.  too   far.      See    Doane   v.    Dunham, 

(b)  It  has  been  stated  that  a  64  Neb.  135;  Burnett  v.  Campbell 
bare  preponderance  of  the  evidence  Co.,  1  Tenn.  Ch.  App.  18. 

is    not    sufficient,   Cunningham   v. 

217 


§  138.]  RESULTING    TRUSTS.  [CHAP.  V. 

the  purchase-money.'  But  loose  and  equivocal  facts  ought  not 
to  control  the  evidence  of  deeds;  and  two  witnesses,  or  one  wit- 
ness with  corroborating  circumstances,  are  required  to  control 
an  answer  under  oath.  And  proof  of  mere  admissions  of  one 
that  he  purchased  for  another,  without  proof  of  some  previous 
arrangement  or  advance  of  money  by  such  other,  is  insufficient 
to  create  a  resulting  trust.^  (a) 

§  138.  It  has  been  stated  by  some  writers  that  after  the 
death  of  the  supposed  nominal  purchaser,  parol  proof  alone  could 
not  be  admitted  to  control  the  express  declaration  of  the  deed ;  ^ 
but  the  cases  relied  upon  are  the  cases  before  cited  to  the  point 
that  parol  proof  is  inadmissible,  both  before  and  after  the  death 
of  the  supposed  nominal  purchaser.  These  cases  are  overruled 
and  it  would  seem  upon  principle  that  the  death  of  the  nominal 
purchaser  cannot  affect  the  admissibility  of  parol  testimony, 
whatever  effect  it  may  have  upon  its  weight.^    Analogous  to 

1  Willis  V.  Willis,  2  Atk.  71;  Wilkins  v.  Stevens,  1  Y.  &  C.  Ch.  431;  Lench 
V.  Lench,  10  Ves.  518;  Bengert;.  Drew,  1  P.  Wms.  780;  Strimpfler  v.  Roberts, 
18  Penn.  St.  283;  Farrell  v.  Lloyd,  69  id.  239;  Baumgartner  v.  Guessfeld, 
38  Mo.  36;  Brown  i'.  Petney,  3  111.  468;  Sayre  v.  Frederick,  16  N.  J.  Eq.  205; 
Gascoigne  v.  Thwing,  30  N.  J.  L.  366;  Groves  v.  Groves,  3  Y.  &  J.  170; 
Mitchell  V.  O'Neil,  4  Nev.  504.  [  Salisbury  v.  Clarke,  61  Vt.  453.  See  also 
Byers  v.  Ferner,  216  Pa.  St.  233.] 

2  Sidle  V.  Walter,  5  Watts,  389;  and  see  Sample  v.  Coulson,  9  W.  &  S. 
62.  The  admission  of  a  trustee  that  he  purchased  certain  property  with  the 
trust  fund  ia  competent  evidence  to  raise  a  resulting  trust  for  the  cestui  qv£ 
trust  in  that  property.    Harrisburg  Bank  v.  Tyler,  3  Watts  &  S.  373. 

3  Sanders  on  Uses  and  Trusts,  259;  note  to  Lloyd  v.  Spillett,  2  Atk.  150; 
Roberts  on  Statute  of  Frauds,  99. 

*  Lewin  on  Trusts,  138  (5th  Lond.  ed.),  2  Mad.  Ch.  Pr.  141;  Sugd.  V. 
&  P.  136  (9th  ed.);  Lench  v.  Lench,  10  Ves.  517;  2  Story,  Eq.  Jur.  §  1201, 
n.;  Livermore  v.  Aldrich,  5  Cush.  435;  Unitarian  So.  v.  Woodbury,  14  Me. 
281;     De    Peyster    i;.    Gould,   2   Green,    Ch.    474;  Harrisburg   Bank   v. 

(a)  A    mere   statement    of    the  other's  money  paid    for   the   land, 

grantee  that  he  holds  in  trust  for  Springer  v.  Kroeschell,  161  111.  358; 

another  is  not  sufficient.     Acker  v.  Van  Buskirk  v.  Van  Buskirk,   148 

Priest,  92  Iowa,  610.    But  a  result-  111.  9;  Whitley  v.  Ogle,  47  N.  J.  Eq. 

ing  trust  may  be    proved  by  ad-  67,  72. 
mission  of  the  title  holder  that  an- 

218 


CHAP,  v.]  PAROL    PROOF.  [§  139. 

this  matter  is  the  question  whether  trust-money  can  be  followed 
into  land  by  parol  evidence;  and  it  is  clearly  established  that 
it  may,  on  the  ground  that  a  purchase  with  trust-money  is  vir- 
tually a  purchase  paid  for  by  the  cestui  que  trust,  and  such  a 
purchase  is  a  trust  by  operation  of  law,  and  not  within  the 
statute  of  frauds.^  And  if  a  trustee  pay  for  property  out  of  the 
trust  fund,  and  take  the  deed  in  the  name  of  another,  the  trust 
results  to  the  cestui  que  trust,  and  not  to  the  trustee.^ 

§  139.  It  follows  that  as  a  resulting  trust  may  be  shown  by 
parol  proof,  as  a  presumption  of  law  arising  out  of  the  trans- 
action, so  the  presumption  may  be  rebutted  by  parol  proof  show- 
ing that  no  trust  was  intended  by  the  parties  at  the  time  of  the 
transaction,^  and  that  it  was  the  intention  to  confer  the  beneficial 
interest  upon  the  supposed  nominal  purchaser,  (a)  As  the 
resulting  trust  is  mere  matter  of  equitable  presumption,  it  may 
be  rebutted  by  facts  that  negative  the  presumption ;  and  what- 
ever facts  appear  tending  to  prove  that  it  was  intended  that  the 
nominal  purchaser  should  take  the  beneficial  interest  as  well  as 
the  legal  title,  negatives  the  presumption.'*    The  presumption 

Tyler,  3  W.  &  S.  373;  Harder  v.  Harder,  2  Sand.  Ch.  17;  McCammon  v. 
Petitt,  3  Sneed.  242;  Faulser  v.  Jones,  7  Ind.  277;  Neill  v.  Keese,  5  Tex.  23; 
Freeman  i-.  Kelly,  1  Hoff.  90;  Richardson  v.  Taylor,  45  Ark.  472. 

'  Lench  v.  Lench,  10  Ves.  517;  Trench  v.  Harrison,  17  Sim.  Ill;  ante, 
§§  127,  12S. 

-  Russell  V.  Allen,  10  Paige,  249;  Wynn  v.  Sharer,  23  Ind.  573.  [See  In 
re  Spencer,  128  Fed.  654.] 

'  Warren  v.  Steer,  112  Penn.  St.  635;  declarations  made  afterwards  and 
not  bearing  on  the  intent  at  the  time  of  purchase  cannot  affect  the  title. 
[Zimmerman  v.  Barber,  176  Pa.  St.  1;  Morris  v.  Clare,  132  Mo.  232,  236; 
Phillips  V.  Swenson,  16  S.  D.  357;  De  Hihns  v.  Free,  70  S.  C  344.) 

*  Rider  v.  Kidder,  10  Ves.  364;  Bonbow  v.  Townsend,  1  M.  &  K.  508; 
Goodright  v.  Hodges,  1  Watk.  Cop.  227;  Lofft.  230;  Rundlc  v.  Rundle,  2 

(a)  Parol     agreements     of     the  of  the  purchase ;  Ward  v.  Ward,  59 

parties  are  admissible    as  e\'idence  Conn.    188,    196;   and   the  same   is 

of  intention,   as  is  also  the  modus  true     of    subsequent     declarations. 

Vivendi  after  the  purchase,  but  only  Deck  v.  Tabler,  41  W.  Va.  332. 
as  showing  the  intention  at  the  time 

219 


§  140.]  RESULTING   TRUSTS.  [CHAP.  V. 

may  be  negatived  as  to  part  of  the  estate,  and  prevail  in  part.' 
The  presumption,  however,  is  in  favor  of  the  trust  resulting  to 
the  party  paying  the  consideration,  and  the  burden  of  proof  is 
upon  the  mere  nominal  purchaser  to  show  that  he  was  intended 
to  have  some  beneficial  interest.^  (o)  The  burden  of  proof  on 
the  whole  case,  however,  rests  on  the  one  who  seeks  to  establish 
a  resulting  trust,  to  show  by  clear  evidence  the  necessary 
facts.^ 

§  140.  And  when  a  clear  understanding  is  had  at  the  time  the 
purchase  is  made,  the  money  paid,  and  the  deed  taken,  by  which 
understanding  the  nominal  purchaser  was  to  have  both  the  legal 
and  the  beneficial  interest,  it  is  incompetent  for  the  person  who 
paid  the  purchase-money  to  put  a  different  construction  upon 
the  transaction  at  a  subsequent  time,  and  claim  a  resulting  trust 
in  the  estate  contrary  to  the  understanding  and  intention  at  the 

Vem.  252;  Taylor  v.  Taylor,  1  Atk.  386;  Redington  v.  Redington,  3  Ridg. 
106;  Beecher  v.  Major,  2  Drew.  &  Sm.  431;  Garrick  v.  Taylor,  29  Beav.  79; 
4  De  G.,  F.  &  J.  159;  Bellasis  v.  Compton,  2  Vem.  294;  Madison  v.  Andrew, 

1  Ves.  58;  Bake  v.  Vining,  30  Maine,  126;  Page  v.  Page,  8  N.  H.  189;  Bots- 
ford  V.  Burr,  2  Johns.  Ch.  405;  Steere  v.  Steere,  5  id.  18;  White  v.  Carpenter, 

2  Paige,  217;  Jackson  v.  Feller,  2  Wend.  465;  Creed  v.  Lancaster  Bank,  1 
Ohio  St.  1;  Sewell  v.  Baxter,  2  Md.  Ch.  448;  Hays  v.  HoUis,  8  Gill,  369; 
McGuire  v.  McGowan,  4  Des.  487;  Elliott  v.  Armstrong,  2  Blackf.  199; 
Philips  V.  Crammond,  2  Wash.  C  C.  441;  Myers  v.  Myers,  1  Casey,  100; 
Squire  v.  Harder,  1  Paige,  494;  Ledge  v.  Morse,  16  Johns.  199;  Smith  i;. 
Howell,  3  Stockt.  122;  Bayles  v.  Baxter,  22  Cal.  375;  McCue  v.  Gallagher, 
23  Cal.  51;  Byers  v.  Danley,  27  Ark.  77;  Hays  v.  Quay,  68  Penn.  St.  263; 
Murphy  v.  Peabody,  63  Ga.  522;  Kelsey  v.  Snyder,  118  111.  544. 

1  Benbow  v.  Townsend,  1  M.  &  K.  506;  Rider  v.  Kidder,  10  Ves.  360; 
Lane  v.  Dighton,  Amb.  409;  Pinney  v.  Fellows,  15  Vt.  525. 

2  Dudley  v.  Bosworth,  10  Humph.  12;  2  Sugd.  V.  &  P.  139  (9th  ed.). 

3  Philpot  V.  Penn.  91  Mo.  44;  Jackson  v.  Wood,  88  Mo.  76;  Johnson  v. 
Quarles,  46  Mo.  423.     [  Joerger  v.  Joerger,  193  Mo.  133.] 

(a)  But    where    for    a    consider-  cutes  by  vesting  the  legal  title  in 

ation  furnished   by   W.    a   convey-  M.,  no  trust  results  for  the  benefit 

ance  was  made  to  him  as  trustee  of  W.,  since  the  intention  was  clear 

for  M.,  and  no  legal  interest  passed  that    M.    should    have     the    entire 

to  W.  because  the  trust  was  a  naked  beneficial  interest.  Wolters  v.  Shraf t, 

one  which  the  statute  of  uses  exe-  69  N.  J.  Eq.  215. 

220 


CHAP,  v.]  LACHES.  [§  141. 

time.^  And  if  the  nominal  purchaser,  under  such  circumstances, 
should  afterwards  agree  to  hold  in  trust  for,  or  to  execute  a  con- 
veyance to  the  person  who  paid  the  money,  courts  would  not 
enforce  the  agreement,  if  it  was  without  a  new  consideration  or 
voluntary.^  So  if  the  trust  is  declared  in  writing  at  the  time  of 
the  transaction  there  can  be  no  resulting  trust,  as  the  one  pre- 
cludes the  other;  ^  or  if  the  nominal  purchaser  stipulates  for 
something  out  of  the  transaction  inconsistent  with  the  trust."*  (a) 

§  141.  Courts  will  not  enforce  a  resulting  trust  after  a  great 
lapse  of  time,^  or  laches  on  the  part  of  the  supposed  cestui  que 
trust,  especially  when  it  appears  that  the  supposed  nominal 
purchaser  has  occupied  and  enjoyed  the  estate.®  (6)    But  if  the 

'  Groves  v.  Groves,  3  Y.  &  J.  172;  Hunt  v.  Moore,  6  Gush.  1;  WTiite  v. 
Sheldon,  4  Nev.  280;  Robles  v.  Clarke,  25  Gal.  317. 

2  Ibid. 

»  Glark  i'.  Bumham,  2  Story,  1;  Anstice  t'.  Brown,  6  Paige,  448;  Leg- 
gett  V.  Dubois,  5  Paige,  114;  Alexander  v.  Warrance,  17  Mo.  230;  Mercer 
V.  Stark,  1  Sm.  &  M.  479;  Dennison  v.  Goehring,  7  Barr,  175. 

<  Dow  V.  Jewell,  21  N.  H.  470. 

'  James  v.  James,  41  Ark. 303  (more  than20  years).  [  Brackin  v.  Newman, 
121  Ala.  311.] 

8  Delane  v.  Delane,  7  Bro.  P.  C.  279;  Clegg  v.  Edmonson,  8  De  G.,  M. 
&  G.  787;  Groves  v.  Groves,  3  Y.  &  J.  172;  Peebles  v.  Reading,  8  Ser.  & 
R.  484;  Graham  v.  Donaldson,  5  Watts,  471;  Haines  v.  O'Connor,  10  Watts, 
315;  Lewis  v.  Robinson,  id.  338;  Buckford  v.  Wade,  17  Ves.  97;  Robertson 
t;.  Macklin,  3  Hayw.  70;  Strimpfler  i-.  Roberts,  18  Penn.  St.  283;  Best  v. 
Campbell, 62  id.  478;  Douglass  v.  Lucas,  63  id.  11 ;  Sunderland  t'.  Sunderland, 
19  Iowa,  325;  Brown  v.  Guthrie,  27  Texas,  610;  Hall  v.  Doran,  13  Iowa,  368; 
Trafford  v.  Wilkinson,  3  Tenn.  Ch.  701;  Newman  v.  Early,  id.  714.  And  see 
Miller  v.  Blose,  30  Grat.  744;  Jennings  v.  Shacklett,  id.  765;  King  v.  Pardee, 

(a)  The   trustee   of   a   resulting  and  separate  use  of  his  wife,  reciting 

trust    is    powerless   to    change   the  that  he  had  purchased  the  land  with 

terms     either     by     a     subsequent  his    wife's    money,    the    attempted 

written  declaration  of  trust  or  by  variance    from    the    terms    of    the 

a  conveyance  to  another  as  trustee  resulting  trust  was  held   to  be   of 

for     the     beneficiary.       Adams     v.  no  effect,  the  wife  being  no  party 

Carey,   53   N.   J.   Eq.   334.     Thus  to   it.     Griffith   i-.    Eisenberg,    215 

where  a  husband  conveyed  land  to  Pa.  St.  182. 

a  third  person  in  trust  for  the  sole  (6)  For  a  more  complete  state- 

221 


§  142.]  RESULTING   TRUSTS.  [cHAP.  V. 

trust  is  admitted,  and  there  has  been  no  adverse  holding,  lapse 
of  time  is  no  bar,^  (a)  and  laches  will  not  be  allowed  to  avail  as 
a  defence,  where  fraud  has  been  practised  on  the  cestui  to  keep 
her  in  ignorance  of  her  rights  until  just  before  filing  the  bill. 
Any  excuse  for  delay  that  takes  hold  of  the  conscience  of  the 
chancellor,  and  makes  it  inequitable  to  interpose  the  bar  is 
sufficient.^  (b) 

§  142.  The  legislature  of  New  York  has  abolished  trusts  re- 
sulting from  the  payment  of  the  consideration  by  one  and  the 
taking  the  title  in  the  name  of  another,  except  in  cases  where 
the  nominal  grantee  has  taken  the  deed  without  the  knowledge 
and  consent  of  the  party  paying  the  money,  or  except  the  pur- 
chase is  made  with  another's  money  in  violation  of  some  duty 
or  trust.^  But  the  statute  saves  the  rights  of  creditors  of  the 
party  paying  the  purchase-money  and  taking  the  title  in  the 
name  of  another.^    If  such  a  purchase  is  a  fraud  upon  creditors, 

96  U.  S.  90;  Midmer  v.  Midmer,  26  N.  J.  Eq.  299;  Smith  v.  Patton,  12  W. 
Va.  541;  McGivney  v.  McGivney,  142  Mass.  156,  160. 

1  Dow  V.  Jewell,  18  N.  H.  340.  [  Lufkin  v.  Jakeman,  188  Mass.  528; 
Madison  v.  Madison,  206  111.  534;  Smith  v.  Smith,  132  Iowa,  700;  Flanner  v. 
Butler,  131  N.  C  155;  Pearce  v.  Dyess,  101  S.  W.  549  (Tex.  Civ.  App.  1907); 
Shackleford  v.  EUiott,  209  111.  333;  Miller  v.  Baker,  160  Pa.  St.  172;  166 
Pa.  St.  414;  Condit  v.  Maxwell,  142  Mo.  266;  Cooksey  v.  Bryan,  2  App. 
D.  C.  557.] 

2  Harris  v.  Mclntyre,  118  111.  275. 

«  Linsley  v.  Sinclair,  24  Mich.  380.    [  Leary  v.  CQrvdn,  181  N.  Y.  222.] 
*  Rev.  Stat.  1859,  Part.  II.  (Vol.  III.  p.  15),  c.  1,  art.  6,  §§  52,  53,  57; 
[  IV  Consol.  Laws  (1909),  p.  3390,  §  94  ];  Bodine  v.  Edwards,  10  Paige,  504; 
Brewster  v.  Power,  10  Paige,  562;  Willink  v.  Vanderveer,  1  Barb.  599;  Nor- 
ton V.  Storer,  8  Paige,  222;  Reid  v.  Fitch,  11  Barb.  399;  Lounsbury  v.  Purdy, 

ment  as  to  the  rule  of  laches  and  166  Pa.  St.  414;  Berry  v.  Wiedman, 

the  application  of  statutes  of  Umi-  40  W.  Va.  36 ;  Fawcett  t;.  Fawcett,  85 

tations  in  case  of  resulting  trusts,  Wis.  332. 

see  infra,  §  865,  note.  (b)  But  long  delay  in  asserting 

(a)  Joint  occupation  by  husband  the  trust  is  always  a  circumstance 

and  wife  is  not  ordinarily  adverse  of  weight  in  determining  whether  or 

to  either' s  claim  of  a  resulting  trust,  not  there  ever  was  a  trust.     Byers 

Miller  v.   Baker,    160   Pa.   St.    172,  v.  Femer,  216  Pa.  St.  233. 

222 


CHAP,  v.]  STATUTES.  [§  142. 

they  may  enforce  the  trust  in  equity,  though  the  original  pur- 
chaser and  payer  of  the  money  would  have  no  remedy;  ^  but  if 
the  debt  is  barred  by  a  discharge  in  bankruptcy,  the  creditor's 
lien  is  gone.^  In  Kentucky,  trusts  resulting  from  the  payment 
of  the  money  and  the  purchase  in  the  name  of  another  are  abol- 
ished, but  an  action  is  given  for  the  recovery  of  the  money  paid.' 
In  Massachusetts,  the  creditors  of  such  a  purchaser,  taking  the 
title  in  the  name  of  a  third  person,  may  levy  their  execution 
upon  the  land,  in  the  same  manner  as  if  the  purchaser  had  taken 
the  title  directly  to  himself.*  And  so  in  New  Hampshire.^  The 
statute  of  New  York  has  been  strictly  construed,  and  therefore 
if  A.  makes  a  purchase,  and  pays  the  money,  and  takes  the  title 
in  the  name  of  B.,  upon  a  parol  trust  for  C,  it  is  not  within  the 
statute;  and  C.  may  enforce  the  trust  as  against  B.®  (a)    Statutes 

16  Barb.  376;  18  N.  Y.  515;  Jencks  v.  Alexander,  11  Paige,  619;  Watson  v. 
Le  Row,  6  Barb.  481;  Russell  v.  Allen,  10  Paige,  250;  Siemon  v.  Schurck, 
29  N.  Y.  598;  Swinburne  v.  Swinburne,  28  N.  Y.  568;  Stover  v.  Flock,  21 
Barb.  162;  Safford  v.  Hind,  39  Barb.  625;  Buffalo  R.  R.  Co.  v.  Lampson, 
47  Barb.  533;  Gilbert  v.  Gilbert,  1  Keyes  (N.  Y.),  159.  See  the  comments 
of  Church,  Ch.  J.,  upon  this  last  case,  in  Foote  v.  Bryant,  47  N.  Y.  561;  and 
see  Gilbert  v.  Gilbert,  2  N.  Y.  Dec.  256;  Farrell  t;.  Lloyd,  69  Penn.  St.  239. 

'  Ibid.;  Jackson  v.  Forrest,  2  Barb.  Ch.  576;  McCartney  v.  Bostwick- 
32  N.  Y.  53. 

^  Ocean  Nat.  Bank  v.  Alcott,  46  N.  Y.  12. 

»  Martin  v.  Martin,  5  Bush,  47.  [  Ky.  Statutes  (1909),  §§  2050-2051 ; 
McConnell  v.  Gentry,  99  S.  W.  278  (Ky.  1907).] 

*  Gen.  Stat.  1860,  c.  103,  §  1;  Stat.  1844,  c.  107;  Foster  v.  Durant,  2  Gray, 
538;  amending  the  law  as  ruled  in  How  v.  Bishop,  3  Met.  26;  Clark  v.  Cham- 
berlain, 12  Allen,  257.    [  Mass.  Rev.  Laws  (1902)  Ch.  178,  §§  1,  47.] 

5  Hutchins  v.  Hcywood,  50  N.  H.  591. 

*  Siemon  v.  Austin,  33  Barb.  9;  Siemon  v.  Schurck,  29  N.  Y.  598;  Foote 
V.  Bryant,  44  N.  Y  544.    [  Gage  v.  Gage,  43  N.  Y.  S.  810,  13  App.  Div.  565.] 

(a)  A  similar  interpretation  has  case    one-tenth,   will    not    cause    a 

been  given  to  the  Michigan  statute,  resulting  trust  to  arise.     Schierloh 

Connolly  v.  Keating,   102  Mich.  1.  t'.  Schierloh,  148  N.  Y.  103. 
But    it    has    also    been    held    that  The  statute  has  no  application 

breach    of    the    oral    agreement    of  to  an  express  parol  trust  evidenced 

the  grantee  to  take  the  deed  in  the  by    a    subsequent    declaration     or 

name    of    one    who    furnishes    only  acknowledgment  in  \\Titing.    Woerz 

part   of  the   consideration,   in   this  v.  Rademacher,  120  N.  Y.  62. 

223 


§  143.]  RESULTING   TRUSTS.  [CHAP.  V. 

similar  to  the  statute  of  New  York  have  been  passed  in  Michi- 
gan/ Wisconsin,^  .[Minnesota/  Kansas/  and  Indiana.^]  In 
Louisiana,  express  trusts  have  been  aboHshed;  but  trusts  aris- 
ing from  the  nature  of  transactions,  or  by  impHcation  of  law, 
are  still  enforced  by  the  courts.' 

§  143.  As  before  stated,  if  a  purchaser  of  an  estate  pays  the 
consideration-money,  and  takes  the  title  in  the  name  of  a  stran- 
ger, the  presumption  is  that  he  intended  some  benefit  for  him- 
self, and  a  resulting  trust  arises  for  him; ''  but  if  the  purchaser 
take  the  conveyance  in  the  name  of  a  wife  or  child  or  other  per- 
son, for  whom  he  is  under  some  natural,  moral,  or  legal  obliga- 
tion to  provide,  the  presumption  of  a  resulting  trust  is  rebutted, 
and  the  contrary  presumption  arises,  that  the  purchase  and  con- 
veyance were  intended  to  be  an  advancement  for  the  nominal 
purchaser.*    The  transaction  will  be  regarded  prima  facie  as  a 

1  R.  S.  1846,  c.  63,  §  4;  Fisher  v.  Fobes,  22  Mich.  454.  [  Compiled  Laws 
(1897),  §§  8835-8837;  Hamilton  v.  Wickson,  131  Mich.  71;  Connolly  v. 
Keating,  102  Mich.  1.] 

'  R.  S.  1858,  c.  84,  §§  7-9.  [Wis.  Statutes  (1898),  §§  2077,  2079;  Meier 
V.  Bell,  119  Wis.  482;  Scott  v.  Holman,  117  Wis.  206.] 

3  [Minn.  Rev.  Laws  (1905),  §§  3245-3247;  Anderson  v.  Anderson,  81 
Minn.  329;  Minneapolis,  etc.  R.  Co.  v.  Limd,  91  Minn.  45,  49;  Stitt  v.  Rat 
Portage  Co.,  96  Minn.  27;  Haaven  v.  Hoaaa,  60  Minn.  313.] 

*  [Kan.  Gen.  Stat.  (1909),  §§  9699-9701;  Chantland  v.  Bank,  66  Kan. 
549;  Hanrion  t;.  Hanrion,  73  Kan.  25.] 

'  [Ind.  Stats.  (Bums,  1908),  §§4017-4019;  HoUiday  v.  Perry,  38  Ind. 
App.  588.] 

"  Gaines  v.  Chow,  2  How.  619;  McDonough's  Ex'rs  v.  Murdock,  15 
How.  367. 

■'  Ante,  §  126. 

8  Murless  t;.  Franklin,  1  Swanst.  17;  Grey  v.  Grey,  2  Swanst.  597;  Finch, 
340;  Dyer  v.  Dyer,  2  Cox,  93;  1  Watk.  Cop.  219;  Redington  v.  Redington, 
2  Ridg.  176;  Elliot  v.  Elliot,  2  Ch.  Cas.  231 ;  Sidmouth  v.  Sidmouth,  2  Beav. 
454;  Thomas  v.  Chicago,  55  111.  403;  Graff  v.  Rohrer,  35  Md.  327;  Christy 
V.  Courtenay,  13  Beav.  96;  Lamplugh  v.  Lamplugh,  1  P.  Wms.  Ill;  Good- 
right  V.  Hodges,  1  Watk.  Cop.  228;  Pole  v.  Pole,  1  Ves.  76;  Woodman  v. 
Morrell,  2  Freem.  33;  Finch  v.  Finch,  15  Ves.  50;  Mumma  v.  Mumma,  2 
Vem.  19;  Skeats  v.  Skeats,  2  Younge  &  C  Ch.  9;  Wait  v.  Day,  4  Denio,  439; 
Wilton  V.  Devine,  20  Barb.  9;  Jackson  v.  Matsdorf,  11  Johns.  91;  Proseus 
i;.  Mclntire,  5  Barb.  424;  Partridge  v.  Havens,  10  Paige,  678;  Guthrie  v. 

224 


CIIAP.  v.]       PURCHASES  IN  NAME  OF  WIFE  OR  CHILD.  [§  143. 

settlement  upon  the  nominal  grantee;  and  if  the  payer  of  the 
money  claims  a  resulting  trust  he  must  rebut  this  presumption 
by  proper  evidence.^  (a)  Lord  Ch.  B.  Eyre  stated  the  doctrine 
thus:  "The  circumstance  of  one  or  more  of  the  nominees  being 
a  child  or  children  of  the  purchaser  is  held  to  operate  by  rebutting 
the  resulting  trust;  and  it  has  been  determined  in  so  many  cases 
that  the  nominee  being  a  child  shall  have  such  operation,  as  a 
circumstance  of  evidence,  that  it  would  be  disturbing  landmarks 
if  we  suffered  either  of  these  propositions  to  be  called  into  ques- 
tion; viz.,  that  such  circumstance  shall  rebut  the  resulting  trust 
and  that  it  shall  do  so  as  a  circumstance  of  evidence.  It  would 
have  been  a  more  simple  doctrine  if  children  had  been  considered 
as  purchasers  for  valuable  consideration.  That  way  of  consider- 
ing it  would  have  shut  out  all  the  circumstances  of  evidence 
which  have  found  their  way  into  the  cases,  and  would  have 
prevented  some  very  nice  distinctions,  not  very  easily  under- 
stood. Considering  it  as  a  circumstance  of  evidence,  there 
must,  of  course,  be  evidence  admitted  on  the  other  side.  Thus 
the  question  is  resolved  into  one  of  intent,  which  was  getting  into 


Gardner,  19  Wend.  414;  Reid  v.  Fitch,  11  Barb.  399;  Page  v.  Page,  8  N.  H. 
187;  Astreen  t^.  Flanagan,  3  Edw.  Ch.  279;  Bodine  v.  Edwards,  id.  504; 
Dennison  v.  Goehring,  7  Barr,  182,  n.;  Knouff  v.  Thompson,  16  Penn.  St. 
357;  Shaw  v.  Read,  47  id.  96;  Fleming  v.  Donahoe,  5  Ohio,  255;  Tremper 
V.  Burton,  18  Ohio,  418;  Stanley  v.  Brannon,  6  Blackf.  193;  Whitten  v. 
Whitten,  3  Gush.  194;  Fatheree  v.  Fletcher,  31  Miss.  265;  Welton  i;.  Devine, 
20  Barb.  9;  Butler  v.  Ins.  Co.,  14  Ala.  777;  Douglass  v.  Price,  4  Rich.  Eq. 
322;  Taylor  v.  James,  4  Des.  9;  Thompson  v.  Thompson,  1  Yerg.  97;  Dud- 
ley j;.  Bosworth,  10  Humph.  12;  Alexander  v.  Warrance,  2  Bennett,  230; 
Cartwright  v.  Wise,  14  111.  417;  Shepherd  v.  White,  10  Tex.  72;  Baker  v. 
Leathers,  3  Ind.  557;  Hill  v.  Pine  River  Bank,  45  N.  H.  300;  Dickenson 
V.  Davis,  44  N.  H.  647;  Miller  t^.  Blose,  30  Grat.  744;  Kelly  v.  Karsner,  72 
Ala.  106;  Schuster  v.  Schuster,  93  Mo.  438;  Seibold  v.  Chrisman,  75  Mo. 
308;  Read  v.  Huff,  40  N.  J.  Eq.  229;  Newman  v.  Early,  3  Tenn.  Ch.  716. 
(Kreps  V.  Kreps,  91  Md.  692.] 

*  Jackson  v.  Matsdorf,  11  Johns.  91;  Shepherd  v.  Whit«,  10  Texas,  72; 
Proseus  v.  Mclntire,  5  Barb.  425'  Butler  v.  Ins.  Co.,  14  Ala.  777;  Hill  v.  Pine 
River  Bank,  45  N.  H.  300. 

(a)   See  Walston  v.  Smith,  70  Vt.  19. 
VOL.  I.  — 15  225 


§  144.]  RESULTING    TRUSTS.  [CHAP.  V. 

a  very  wide  sea  without  very  certain  guides."  ^  And  Lord 
Nottingham  pointed  out  that  the  law  of  resulting  trusts,  in  this 
respect,  was  analogous  to  uses  before  the  statute,  "  for  the  feoff- 
ment of  a  stranger  before  the  statute,  without  consideration, 
raised  a  use  in  the  feoffor;  but  a  feoffment  by  a  father  to  a  son, 
without  other  consideration,  raised  no  use  by  implication  in  the 
father,  for  the  consideration  of  blood  settled  the  use  in  the  son, 
and  made  it  an  advancement."  ^  Where  the  husband  pur- 
chases land  for  his  wife  with  his  own  funds,  taking  the  obligation 
of  the  vendor  to  execute  a  deed  to  the  wife,  the  latter,  or  after 
her  death  her  children,  can  enforce  a  conveyance  of  the  legal 
title,  although  the  said  obligation  had  been  pledged  to  the 
vendor  by  the  husband  as  a  security  for  a  loan  to  himself.^ 

§  144.  This  rule  embraces  all  persons  for  whom  the  purchaser 
is  under  any  obligation,  legal  or  moral,  to  provide.  It  embraces 
daughters  as  well  as  sons,*  although  a  distinction  was  once  at- 
tempted, on  the  ground  that  it  is  not  so  common  to  settle  lands 
upon  daughters  as  upon  sons.^  It  embraces  estates  bought  in 
the  name  of  a  wife,°  and  in  the  joint  names  of  the  wife  and  the 

^  Dyer  v.  Dyer,  2  Cox,  94.  Where  land  is  purchased  with  money  of  the 
wife  and  the  deed  taken  in  the  name  of  the  husband,  it  is  a  question  of 
fact  and  intention  whether  the  husband  reduced  the  money  to  possession 
before  paying  it  over  for  the  deed.    Moulton  v.  Haley,  57  N.  H.  184. 

»  Grey  v.  Grey,  2  Swanst.  598. 

»  Morris  v.  Hanson,  78  Ala.  230. 

*  Lady  Gorge's  Case,  Cro.  Car.  550;  2  Swanst.  600;  Clarke  v.  Danvers, 
1  Ch.  Cas.  310;  Woodman  v.  Morrell,  2  Freem.  33;  Jennings  v.  Selleck,  1 
Vem.  467;  Bedwell  v.  Froome,  2  Cox,  97;  Back  v.  Andrew,  2  Vem.  120; 
Baker  v.  Leathers,  3  Ind.  558;  Murphy  v.  Nathans,  46  Penn.  St.  508;  Astreen 
V.  Flanagan,  3  Edw.  Ch.  279,  was  the  case  of  an  adopted  daughter.  [  Hoon 
V.  Hoon,  126  Iowa,  391  (son);  Long  v.  King,  117  Ala.  423.] 

•*  Gilb.  Lex.  Prat.  272. 

•  Glaister  v.  Hewer,  8  Ves.  199;  Dummer  v.  Pitcher,  2  M.  &  K.  262; 
Kingdom  v.  Bridges,  2  Vem.  67;  Christ's  Hospital  v.  Budgin,  id.  683;  Back 
V.  Andrew,  id.  120;  Benger  v.  Drew,  1  P.  Wms.  780;  Wallace  v.  Bowens,  28 
Vt.  138;  Guthrie  v.  Gardner,  19  Wend.  414;  Welton  t^.  Devine,  20  Barb. 
9;  Garfield  v.  Hatmaker,  15  N.  Y.  475;  Jencks  v.  Alexander,  11  Paige,  619; 
Astreen  v.  Flanagan,  3  Edw.  Ch.  279;  Kline's  App.  39  Penn.  St.  463;  Alex- 
ander V.  Warrance,  2  Bennett,  230;  Drew  v.  Martin,  32  L.  J.  Ch.  367;  Graff 

226 


CHAP,  v.]       PURCHASES  IN  NAME  OF  WIFE  OR  CHILD.  [§   144. 

purchaser;  ^  (a)  also,  in  the  names  of  the  wife  and  children.' 
So,  in  the  names  of  a  son  and  a  stranger,  in  which  case  the  moiety 
to  the  son  will  be  an  advancement,^  but  the  moiety  in  the  name 
of  the  stranger  will  be  presumed  to  be  in  trust  for  the  purchaser.^ 
And  if  a  grandparent  purchase  in  the  name  of  a  grandchild, 
whether  the  father  is  or  is  not  dead,  it  will  be  presumed  to  be 
an  advancement,  and  not  a  trust;  ^  and  so  a  purchase  by  a  per- 
son who  has  placed  himself  in  loco  parentis  to  the  nominal  grantee 
will  be  presumed  to  be  a  settlement,  and  not  a  trust,  for  the 
purchaser.^    And  if  the  nominal  grantee  is  an  illegitimate  child 

V.  Rohrer,  35  Md.  327;  Johnson  v.  Johnson,  16  Minn.  512;  Thomas t^. Chicago, 
55  111.  403.  But  if  there  is  no  legal  marriage  the  conveyance  will  be  presumed 
to  be  a  trust,  and  not  an  advancement.  Soar  v.  Foster,  4  K.  &  J.  152.  [  Long 
V.  King,  117Ala.  423, 431;  Hambyt;.  Brooks,  86  Ark.  448;  Jentzschy.Jentzsch, 
84  Ark.  322;  Chambers  v.  Michael.Tl  Ark.  373;  Foster  v.  Berrier,  39  Colo. 
398;  Rowe  v.  Johnson,  33  Colo.  469;  McCartney  v.  Fletcher,  11  App.  D.  C. 
1,10;  Deuter  v.  Deuter,  214  111.  308;  Fry  v.  Morrison,  159  111.  244;  Goelz  i-. 
Goelz,  157  111.  33;  Andrew  v.  Andrew,  114  Iowa,  524;  Danforth  v.  Briggs, 
89  Me.  316;  Johnson  v.  Johnson,  96  Md.  144;  Siling  v.  Hendrickson,  193 
Mo.  365;  Viers  v.  Viers,  175  Mo.  444;  Gilliland  v.  Gilliland,  96  Mo.  522; 
Van  Etten  v.  Passumpsic  B'k,  79  Neb.  632;  Bailey  v.  Dobbins,  67  Neb. 
548;  Kobarg  v.  Greeder,  51  Neb.  365;  Klamp  v.  Klamp,  51  Neb.  17;  Selover 
V.  Selover,  62  N.  J.  Eq.  761;  Bacon  v.  Devinney,  55  N.  J.  Eq.  449;  \\Tiitley 
V.  Ogle,  47  N.  J.  Eq.  67;  Lipp  v.  Fielder,  72  N.  J.  Eq.  439;  Schellinger  v. 
Selover,  46  A.  1058  (N.  J.  Ch.  1900),  Re>Tiolds  v.  Blaisdell,  23  R.  I.  16; 
Eb-od  V.  Cochran,  59  S.  C  467;  Walston  v.  Smith,  70  Vt.  19;  Simpson  v.  Bel- 
cher, 61  W.  Va.  157  ;  Johnson  v.  Ludwick,  58  W.  Va.  464;  Deck  v.  Tabler,  41 
W.  Va.  332;  Smithsonian  Inst.  v.  Meech,  169  U.  S.  398;  In  re  Fobs,  147 
Fed.  790.] 

1  Ibid.    (Hayes  v.  Horton,  46  Or.  597.] 

*  Dummer  v.  Pitcher,  2  M.  &  K.  262;  5  Sim.  35;  Kingdom  v.  Bridges, 
2  Vem.  67;  Back  v.  Andrew,  id.  120;  Stevens  v.  Stevens,  78  Maine,  92. 

*  Lamplugh  v.  Lamplugh,  1  P.  Wms.  Ill;  Kingdom  v.  Bridges,  2  Vem. 
67;  Rumboll  i-.  Rumboll,  1  Eden,  17.  ♦  Ibid. 

5  Ebrand  v.  Dancer,  2  Ch.  Cas.  26;  Lloyd  v.  Road,  1  P.  Wms.  607;  Cur- 
rant V.  Jago,  1  Coll.  265;  n.  (c);  Tucker  v.  Burrow,  2  Hem.  &  M.  525;  Kil- 
pin  V.  Kilpin,  1  M.  &  K.  520. 

'  Ibid.    But  it  is  said  that  such  piirchase  will  not  be  presumed  to  be  an 

(a)  But  a  purchase  in  the  name  a  divorce  from  his  wife  is  not  pre- 
of  the  woman  whom  the  purchaser  sumed  to  be  a  gift.  Lufkin  v.  Jake- 
has  agreed  to  marry  when  he  gets      man,  188  Mass.  528. 

227 


§  144.]  RESULTING    TRUSTS.  [CHAP.  V. 

of  the  purchaser,  the  same  presumption  will  arise;  ^  or  if  the 
nominal  grantee  be  an  idiot,^  or  a  son-in-law,'  But  if  the 
nominal  grantee  be  a  brother  of  the  purchaser,  the  law  will  pre- 
sume a  trust  and  not  an  advancement,  on  the  ground  that  there 
is  no  such  obligation  on  one  brother  to  support  or  provide  for 
another,  that  the  purchase  can  be  presumed  to  be  made  for 
such  a  purpose;  ^  so  if  one  sister  pay  the  money,  and  take  the 
conveyance  in  the  name  of  another  sister.^  And  where  the 
nominal  grantee  stands  in  the  relation  of  mother  or  nephew  to 
the  real  purchaser,  no  presumption  of  an  advancement  or  settle- 
ment will  arise,  but  it  will  be  presumed  to  be  a  trust  unless  the 
purchaser  stands  in  loco  'parentis  to  the  nominal  grantee.^  And 
if  the  son  stands  in  the  relation  of  solicitor  to  his  mother,  a  pur- 
chase made  by  her,  in  his  name,  will  be  presumed  to  be  a  trust, 
as  the  relation  of  solicitor  and  client  rebuts  the  presumption  of 
an  advancement,^  and  so,  it  is  said,  the  rule  does  not  apply  to 
any  purchase  made  by  a  mother  in  the  name  of  a  child.^  A 
purchase  by  a  wife  in  the  name  of  her  husband  may  be  shown  to 

advancement  if  the  conveyance  is  taken  to  a  remote  relative,  or  to  a  stran- 
ger, although  the  real  purchaser  may  have  placed  himself  in  loco  parentis. 
Tucker  t;.  Burrow,  2  Hem.  &  M.  515;  Powys  v.  Mansfield,  3  My.  &  Cr.  359; 
MiUer  v.  Blose,  30  Grat.  744. 

1  Beckford  v.  Beckford,  Lofft.  490;  Kilpin  v.  Kilpin,  1  M.  &  K.  556; 
Anon.,  1  Wal.  Jr.  107;  Kimmel  v.  McWright,  2  Barr,  38;  Soar  v.  Foster,  4 
K.  &  J.  160.  But  it  is  said  that  this  rule  will  not  apply  to  the  illegitimate 
child  of  a  legitimate  child.    Tucker  v.  Burrow,  2  Hem.  &  M.  525. 

2  Cartwright  v.  Wise,  14  111.  417. 
^  Baker  v.  Leathers,  3  Porter,  558. 

*  Maddison  v.  Andrew,  1  Ves.  58;  Edwards  v.  Edwards,  39  Penn.  St. 
369;  Foster  v.  Foster,  34  L.  J.  Ch.  428.     [  Camden  v.  Bennett,  64  Ark.  155.] 

"  Keaton  v.  Cobb,  1  Dev.  Ch.  439;  Field  v.  Lonsdale,  14  Jur.  995;  13 
Beav.  78. 

•  Currant  v.  Jago,  1  Coll.  C.  C.  263;  Lamplugh  v.  Lamplugh,  1  P.  Wms. 
Ill;  Taylor  v.  Alston,  2  Cox,  97;  Edwards  v.  Field,  3  Mad.  237;  Jackson  v. 
Feller,  2  Wend.  465.  [  Roberts  v.  Remy,  56  Ohio  St.  249  (money  of  children 
used  for  purchase  in  name  of  mother).] 

">  Garrett  i;.  Wilkinson,  2  De  G.  &  Sm.  244. 

'  In  re  De  Visme,  2  De  G.,  J.  &  Sm.  17.  [  See  contra  Hallenback  v.  Rogers, 
67  N.  J.  Eq.  199,  221;  Brennaman  v.  Schell,  212  111.  356;  In  re  Peabody, 
118  Fed.  266,  55  C.  C.  A.  360;  Adley  v.  Fletcher,  104  P.  167  (Wash.  1909).] 

228 


CHAP,  v.]       PURCHASES  IN  NAME  OF  WIFE  OR  CHILD.  [§   144. 


be  a  trust.^    The  rule  applies  to  personal  as  well  as  real  prop- 
erty.' (a) 

1  McGovern  v.  Knox,  21  Ohio,  St.  552. 

'  Devoy  i;.  Devoy,  3  Sm.  &  Gif.  403;  Dummer  v.  Pitcher,  2  M.  &  K. 
262;  Bone  v.  Pollard,  24  Beav.  283;  Sidmouth  v.  Sidmouth,  2  Beav.  447; 
Fox  V.  Fox,  15  Ir.  Ch.  89. 

common-law  right  to  appropriate 
to  himself  the  personal  property  of 
his  ynie.  See  Hudson  i-.  Wright, 
204  Mo.  412;  Reed  v.  Sperry,  193 
Mo.  167.  But  where  the  common- 
law  rule  still  holds,  such  a  use  of  a 
wife's  personal  property,  with  or 
without  her  consent,  would  be  pre- 
sumed to  be  a  reduction  to  posses- 
sion by  the  husband  in  the  exercise 
of  his  marital  rights.  Jones  v.  Jones, 
80  Ark.  379;  Hogue  v.  Steel,  207  111. 
340;  Benbow  v.  Moore,  114  N.  C. 
263;  Jesser  v.  Armentrout,  100  Va. 
666.  An  oral  declaration  by  the 
husband  that  he  was  purchasing  for 
the  benefit  of  the  wife  is  suflScient 
to  rebut  the  presumption  that  he 
was  exercising  his  marital  right,  and 
will  cause  a  trust  to  result  for  her. 
Leslie  v.  Bell,  73  Ark.  338.  But  the 
presumption  will  not  be  rebutted 
by  showing  merely  that  he  allowed 
his  wife  to  think  the  land  was  hers. 
Jesser  i'.  Armentrout,  100  Va.  666. 
If  the  wife's  money  or  property 
used  in  the  purchase  had  ceased 
to  be  her  property  at  the  time  of 
the  purchase,  as  by  a  gift  or  loan 
to  the  husband,  there  can  be  no 
resulting  trust,  irrespective  of  the 
intention  of  the  parties.  Clark  v. 
Patterson,  158  Mass.  388;  Ben- 
nett V.  Bennett,  37  W.  Va.  396; 
Kegerreis  v.  Lutz,  187  Pa.  St.  252. 
Thus  where  there  was  an  under- 
standing that  the  husband  should 
repay  the  wife's  money  there  could 
be  no  resulting  trust  for  the  wife, 

229 


(a)  The  use  of  a  wife's  separate 
property  with  her  consent  in  pay- 
ing the  purchase  price  for  property 
conveyed  to  her  husband  may  be  the 
basis  of  a  resulting  trust  if  her  under- 
standing was  that  the  property  or 
an  interest  in  it  should  be  hers  or 
should  be  held  for  her  benefit. 
Shelby  v.  Tardy,  84  Ala.  327;  Booth 
V.  Lenox,  45  Fla.  191,  199;  Hill  v. 
Meinhard,  39  Fla.  Ill,  117;  Bell  v. 
Stewart,  98  Ga.  669;  Smith  v.  Smith, 
132  Iowa,  700;  Howard  v.  Howard, 
52  Kan.  469;  Black  v.  Black,  64  Kan. 
689;  McMurray  v.  McMurray,  180 
Mo.  526;  Donovan  v.  Griffith,  215 
Mo.  149;  Cleghom  v.  Cleghom,  53 
Neb.  687;  Irick  v.  Clement,  49  N.  J. 
Eq.  590;  Ray  v.  Long,  128  N.  C.  90; 
Beam  v.  Bridgers,  108  N.  C.  276; 
Barger  v.  Barger,  30  Or.  208;  Miller 
V.  Baker,  160  Pa.  St.  172;  166  Pa. 
St.  414;  Olinger  v.  Shultz,  183  Pa. 
St.  469;  Grantham  v.  Grantham,  34 
S.  C.  504;  Bible  v.  Marshall,  103 
Tenn.  324;  Cresap  v.  Cresap,  54  W. 
Va.  581;  Standard  Mercantile  Co. 
V.  Ellis,  48  W.  Va.  309;  Fawcett  v. 
Fawcett,    85    Wis.    332. 

It  is  not  essential  that  the  hus- 
band should  have  intended  a  trust 
for  her  if  the  property  which  was 
used  was  her  separate  property 
which  he  could  not  make  his  with- 
out her  consent.  Howard  v.  How- 
ard, 52  Kan.  469;  Siling  v.  Hen- 
drickson,    193  Mo.   365 

In  most  jurisdictions  statutes 
have  deprived  the  husband  of  the 


§  145.]  RESULTING   TRUSTS.  [cHAP.  V. 

§  145.  The  general  principle  is,  that  a  purchase  by  the  parent, 
in  the  name  of  a  child,  is  presumed  to  be  an  advancement,  and 
not  a  trust.  This  presumption  is  one  of  fact,  and  may  be  rebutted 
by  evidence  or  circumstances;  and  some  courts  have  been  astute 
in  finding  circumstances  and  subtile  distinctions  to  rebut  this 
presumption.  Thus,  if  the  child  was  an  infant,  it  was  thought 
that  a  parent  would  not  confer  upon  it  an  absolute  property, 
which  it  was  incapable  of  managing,^  and  so,  if  the  interest 
was  reversionary,  and  not  capable  of  present  enjoyment,  it  was 
said  that  the  father  could  not  have  intended  it  as  a  provision 
and  settlement,  or  advancement.^  Again,  if  a  father  took  the 
conveyance  in  his  own  name  jointly  with  his  son,  it  was  sup- 
posed that  the  presumption  of  an  advancement  was  rebutted, 
on  the  ground  that  the  father  had  some  interest  in  one-half, 
and  might  have  the  whole  by  survivorship,  while  the  son  could 
not  sever  the  joint  tenancy  till  he  arrived  at  age.^    And  if  a 

'  Binion  v.  Stone,  2  Freem.  169;  Nels.  68;  2  Freem.  128,  c.  151. 
2  RumboU  y.  Rumboll,  2  Eden,  17;  Finch  v.  Finch,  15  Ves.  43;  Murlesa 
V.  FrankUn,  1  Swanst.  13. 

»  Stileman  v.  Ashdown,  2  Atk.  480;  Pole  v.  Pole,  1  Ves.  76. 

although  there  was  a  parol  agree-  no  such  presumption  of  gift  when 
ment  to  hold  it  in  trust  for  her  benefit  a  wife  turns  over  property  to  her 
until  the  money  should  be  repaid,  husband  to  be  used  by  him  in  pur- 
Loftis  V.  Loftis,  94  Tenn.  232.  chasing  a  definite  piece  of  property. 
When  a  wife  turns  over  her  The  natural  presumption  in  such  a 
separate  property  to  her  husband  case  would  usually  be  that  she  in- 
fer use  in  his  business  or  for  use,  tended  that  he  should  act  as  her 
together  with  property  of  his  own,  agent  in  acquiring  the  property, 
in  the  purchase  of  other  property,  and  a  trust  would  result  if  he  took 
without  any  distinct  understanding,  title  in  his  own  name.  Berry  v. 
a  gift  will  be  presumed,  but  the  Wiedman,  40  W.  Va.  36;  Besson  v. 
presumption  is    not  a  strong    one.  Eveland,  26  N.  J.  Eq.  468. 


Clark  V.  Patterson,  158  Mass.  388 
Bennett  v.  Bennett,  37  W.  Va.  396 
Pickens  v.  Wood,  57  W.  Va.   480 


When  a  wife  furnishes  part  of 
the  purchase-money  with  tl^e  under- 
standing that  she  shall  be  interested 


Throckmorton  v.  Throckmorton,  91  in   the   property   pro  rata,   a  trust 

Va.  42;  Shupe  v.  Bartlett,  106  Iowa,  results  as  to  the  portion  of  the  prop- 

654;  Nashville  Trust  Co.  v.  Lannom,  erty  paid  for  with  her  money.    Bell 

36  S.  W.  977  (Tenn.);    Beecher  v.  v.    Stewart,   98   Ga.   669;    Light   v. 

Wilson,  84  Va.  813;  Rotter  v.  Scott,  Zeller,  144  Pa.  St.  570,  582;  Sparks 

111   Iowa,   31.     Probably  there  is  v.  Taylor,  99  Tex.  411. 

230 


CHAP,  v.]       PURCHASES  IN  NAME  OF  WIFE  OR  CHILD.  [§  146. 

father  took  a  grant  to  himself  and  sons  upon  successive  lives, 
it  was  thought  that,  as  the  father  must  use  some  names  beside 
his  own,  those  of  his  sons,  being  used  from  prudential  and  family 
reasons,  rebutted  the  presumption  of  an  advancement  and 
raised  the  presumption  of  a  trust;  *  and  so  the  circumstance 
that  a  child  was  already  provided  for  was  held  to  rebut  the 
presumption  of  a  further  advancement.^  Again,  if  a  father 
purchased  in  the  name  of  an  adult  son,  and  kept  the  actual 
possession  of  the  estate,  and  received  the  rents  and  profits,  the 
presumption  of  an  advance  was  supposed  to  be  rebutted,  and 
the  presumption  of  a  trust  created.* 

§  146.  But  these  objections  have  all  been  overruled,  and 
from  the  manner  these  distinctions  are  disposed  of,  a  general 
principle  applicable  to  every  case  may  be  stated,  "  that  reasons 
which  partake  of  too  great  a  degree  of  refinement  should  not 
prevail  against  a  rule  of  property  which  is  so  well  established 
as  to  become  a  landmark,  and  which,  whether  right  or  wrong, 
should  be  carried  throughout,"  *  and  Lord  Eldon  added,  that  this 
principle  of  law,  that  a  purchase  is  presumed  prima  facie  to  be 
an  advancement,  is  not  to  be  frittered  away  by  mere  refinements.* 
Therefore  it  is  now  established  that  a  purchase  in  the  name  of  an 
infant  child  is  privia  facie  an  advancement,^  and  the  purchase  of 
a  reversionary  interest  in  the  name  of  a  child  falls  within  the 
same  rule;  ^  so  a  purchase  by  a  father,  in  the  joint  names  of 

1  Dyerr.  Dyer,  2  Cox,  95;  1  Watk.  Cop.  221;  Dickinson  r.  Shaw,  2  Cox,  95. 

«  Elliot  V.  Elliot,  2  Ch.  Cas.  231;  Pole  v.  Pole,  1  Ves.  76;  Grey  v.  Grey, 
2  Swanst.  600;  Finch,  341;  Lloyd  i;.  Read,  1  P.  Wms.  608;  Redington  v. 
Redington,  3  Ridg.  190. 

'  Gilb.  Lex  Praet.  271. 

*  By  Ch.  B.  Eyre,  Dyer  v.  Dyer,  2  Cox,  98. 
<-  Finch  V.  Finch,  15  Ves.  50. 

*  Ibid.;  Murama  v.  Mumma,  2  Vem.  19;  Lamplugh  ti.  Lamplugh,  1 
P.  Wms.  Ill;  La  y  Gorge's  Case,  2  Swanst.  600;  CoUinaon  d.  Collinson,  3 
De  G.,  M.  &  G.  403;  Skeats  v.  Skeats,  2  Y.  &  C.  Ch.  9;  Christy  v.  Courtenay, 
13  Beav.  19. 

'  Rumboll  V.  Rumboll,  2  Eden,  17;  Murless  v.  Franklin,  1  Swanst.  13; 
Finch  t'.  Finch,  15  Ves.  43. 

231 


§  146.]  RESULTING   TRUSTS.  [CHAP.  V. 

himself  and  son/  or  in  the  joint  names  of  a  son  and  a  stranger,* 
and  so  if  a  father  take  an  estate  for  successive  Hves,  as  his  own 
and  his  sons'.^  If  a  child  in  whose  name  the  purchase  is  made  is 
already  provided  for,  it  will  be  a  circumstance  to  be  considered 
with  other  evidence;  but  it  will  not  of  itself  rebut  the  presump- 
tion of  an  advancement.  Lord  Loughborough  said,  "that  a 
purchase  under  such  circumstances  by  a  father  in  the  name  of  a 
son  was  not,  but  might  be,  a  trust  for  the  father."  ^  If  a  father 
purchase  in  the  name  of  a  son,  whether  an  infant  or  an  adult, 
and  keep  the  actual  possession  of  the  estate,  and  receive  the 
profits,  it  will  be  presumed  that  the  purchase  was  an  advance- 
ment; ^  for  if  the  son  was  an  infant,  the  father  would  be  its 
natural  guardian,  or  quasi  guardian,  and  protector,  and  thus 
receive  the  rents  of  the  estate.^  And  if  the  son  was  an  adult,  the 
natural  reverence  and  submission  due  from  children  to  their 
parents  would  account  for  the  circumstances.^  But  any  con- 
temporaneous acts  wholly  inconsistent  with  the  intention  of  an 
advancement  to  the  child  will  make  him  a  trustee  for  the  father. 
Thus,  if  there  is  any  circumstance  accompanying  the  purchase 

1  Dummer  v.  Pitcher,  2  M.  &  K.  272;  Grey  v.  Grey,  2  Swanst.  599;  Back 
V.  Andrew,  2  Vern.  120;  Scroope  v.  Scroope,  1  Ch.  Gas.  27;  Thompson  v. 
Thompson,  1  Yerg.  97. 

2  Hayes  v.  Kingdom,  1  Vem.  34;  Kingdom  v.  Bridges,  2  id.  67;  Lam- 
plugh  V.  Lamplugh,  1  P.  Wms.  111. 

'  Dyer  v.  Dyer,  2  Cox,  95. 

*  Ibid.  93;  Redington  v.  Redington,  3  Ridg.  190;  Sidmouth  v.  Sidmouth, 
3  Beav.  456;  Kilpin  v.  Kilpin,  1  M.  &  K.  542. 

*  Grey  v.  Grey,  2  Swanst.  600;  Redington  v.  Redington,  3  Ridg.  190; 
Lamplugh  v.  Lamplugh,  1  P.  Wms.  111. 

"  Mumma  v.  Mumma,  2  Vem.  19;  Fox  v.  Fox,  15  Ir.  Ch.  89;  Taylor  v. 
Taylor,  1  Atk.  386;  Lamplugh  v.  Lamplugh,  1  P.  Wms.  Ill;  Lloyd  v.  Read, 
id.  608;  Lady  Gorge's  Case,  Cro.  Car.  550;  2  Swanst.  600;  Stileman  v.  Ash- 
down,  2  Atk.  480;  Christy  v.  Courtenay,  13  Beav.  96;  Paschall  v.  Hinderer, 
28  Ohio  St.  568. 

»  Grey  v.  Grey,  2  Swanst.  600;  Dyer  v.  Dyer,  2  Cox,  95;  Woodman  v. 
Morrell,  2  Freem.  32;  note  by  Hovenden;  Shales  f.  Shales,  id.  252;  Scawen 
V.  Scawen,  1  Y.  &  C  Ch.  65;  Murless  v.  Franklin,  1  Swanst.  17;  Redington 
V.  Redington,  3  Ridg.  190;  Sidmouth  v.  Sidmouth,  2  Beav.  447;  EUiot  v. 
Elliot,  2  Ch.  Cas.  231;  Williams  v.  Williams,  32  Beav.  370;  Lloyd  v.  Read, 
1  P.  Wms.  607. 

232 


CHAP,  v.]  EVIDENCE.  [§  147. 

which  explains  why  it  was  taken  in  the  wife's  or  child's  name, 
and  shows  that  it  was  not  intended  to  be  an  advancement,  but 
was  intended  to  be  a  trust  for  the  husband  or  father,  the  pre- 
sumption of  an  advancement  will  be  rebutted,  and  the  inference 
of  a  trust  will  be  established.^ 

§  147.  Whether  a  purchase  in  the  name  of  a  wife  or  child  is  an 
advancement  or  not,  is  a  question  of  pure  intention,  though  pre- 
sumed in  the  first  instance  to  be  a  provision  and  settlement; 
therefore,  any  antecedent  or  contemporaneous  acts  or  facts  may 
be  received,  either  to  rebut  or  support  the  presumption,^  and 
any  acts  or  facts  so  immediately  after  the  purchase  as  to  be 
fairly  considered  a  part  of  the  transaction  may  be  received  for 
the  same  purpose.'  (a)    And  so  the  declarations  of  the  real  pur- 

»  Prankerd  v.  Prankerd,  1  S.  &  S.  1;  Baylis  v.  Newton,  1  Vern.  28;  Birch 
V.  Blagrave,  Arab.  264;  Fair  v.  Davis,  8  East,  354;  Perkins  v.  Nichols,  11 
Allen,  542;  Balford  v.  Crane,  1  Greene,  Ch.  265;  Skillman  v.  Skillman, 
2  McCarter,  478;  Gibson  v.  Foote,  40  Miss.  788;  Cook  v.  Bremond,  27  Tex. 
457;  Sunderland;;.  Sunderland,  19  Iowa,  325;  Clark  v.  Clark,  43  Vt.  685. 

2  Christy  v.  Courtenay,  13  Beav.  96;  Baylis  v.  Newton,  2  Vern.  28; 
Shales  t^. Shales,  2  Freem.252;  Tucker  v.  Burrow, 2  Hem.  &  M.524;  Collinson 
V.  Collinson,  3  De  G.,  M.  &  G.  409;  Murless  v.  Franklin,  1  Swanst.  19;  Lloyd 
V.  Read,  1  P.  Wms.  607;  Taylor  v.  Alston,  cited  2  Cox,  96;  Grey  v.  Grey, 

2  Swanst.  600;  WilUams  v.  WilUams,  32  Beav.  370;  Redington  v.  Redington, 

3  Ridg.  177;  Rawloigh's  Case,  cited  Hard.  497;  Prankerd  v.  Prankerd,  1  S. 
&  S.  1;  Swift  V.  Davis,  8  East,  354,  n.  (a);  Hall  v.  Hall,  1  Connor  &  Law, 
120;  Taylor  y.  Taylor,  4  Gilm.  303;  Slack  t-.  Slack,  26  Miss.  290;  Johnson  v. 
Matsdorf,  11  Johns.  91;  Butler  t;.  M.  Ins.  Co.,  14  Ala.  777;  Dudley  v.  Bos- 
worth,  10  Humph.  12;  Hayes  v.  Kindersley,  2  Sm.  &  Gif.  194;  Peer  v.  Peer, 
3  Stockt.  432;  Persons  i'.  Persons,  25  N.  J.  Eq.  250;  Milner  v.  Freeman,  40 
Ark.  62.  [Skahen  v.  Irving,  206  III.  597;  Brennaman  v.  Schell,  212  111.  356; 
Dorman  i;.  Dorman,  187  111.  154;  Dana  t;.  Dana,  154  Mass.  491 ;  Viers  v. 
Viers,  175  Mo.  444;  Bailey  v.  Dobbins,  67  Neb.  548;  Lahey  i'.  Broderick, 
72  N.  H.  180;  Planner  v.  Butler,  131  N.  C  151;  Currie  v.  Look,  14  N.  D. 
482;  Moore  v.  Moore,  165  Pa.  St.  464;  Eh-od  v.  Cochran,  59  S.  C.  467; 
Hickson  v.  Culbert,  19  S.  D.  207;  Smithsonian  Inst.  v.  Meech,  169  U.  S. 
398.] 

'  Jeans  v.  Cooke,  24  Beav.  521;  Redington  v.  Redington,  3  Ridg.  196; 

(a)  A  description  of  the  grantee  otherwise  declaring  the  trust  is 
in  the  deed  as  "trustee"  without     sufficient  to  rebut  the  presumption 

233 


§   147,]  RESULTING    TRUSTS.  [CHAP.  V. 

chaser,  either  before  or  at  the  time  of  the  purchase,  may  be 
received  to  show  whether  he  intended  it  as  an  advancement  or 
a  trust.^  Such  declarations  are  received,  not  as  declarations  of 
a  trust  by  parol  or  otherwise,  but  as  evidence  to  show  what  the 
intention  was  at  the  time.  They  are  parts  of  the  transaction,  or 
words  accompanying  an  act.^  The  real  purchaser,  if  otherwise 
competent,  may  be  a  witness  to  state  what  his  objects,  pur- 
poses, and  intentions  were  in  making  the  purchase  and  in 
taking  the  title  in  the  name  of  his  wife  or  child. ^  Of  course, 
declarations  made  by  the  husband  or  father  after  the  purchase 
are  incompetent  to  control  the  effect  of  the  prior  transaction.* 
But  such  declarations  may  be  used  by  the  wife  or  child  against 
the  purchaser  to  show  that  it  was  a  settlement  and  not  a  trust.^ 
And  the  after  declarations  of  the  nominal  grantee  may  be  used 
against  him,  but  not  in  his  favor.®    But  the  declarations  must  be 

Prankerd  v.  Prankerd,  1  S.  &  S.  1;  Murless  v.  Franklin,  1  Swanst.  17;  Swift 
V.  Davis,  8  East,  354,  n.  (a),  Robinson  v.  Robinson,  45  Ark.  481. 

1  Devoy  v.  Devoy,  3  Sm.  &  Gif.  403;  Grey  v.  Grey,  2  Swanst.  594;  Kil- 
pin  V.  Kilpin,  1  M.  &  K.  520;  Sidmouth  i;.  Sidmouth,  2  Beav.  455;  Scawen. 
V.  Scawen,  1  Y.  &  C  Ch.  65. 

2  Ibid.;  Baker  v.  Leathers,  3  Ind.  558.  [See  Ward  v.  Ward,  59  Conn. 
188,  196;  Deck  v.  Tabler,  41  W.  Va.  332.] 

»  Devoy  v.  Devoy,  3  Sm.  &  Gif.  403;  Stone  v.  Stone,  3  Jur.  (n.  s.)  708. 

*  Tremper  v.  Burton,  18  Ohio,  418;  Christy  v.  Courtenay,  13  Beav.  96; 
WiUiams  v.  Williams,  32  Beav.  32;  Sidmouth  v.  Sidmouth,  2  Beav.  456; 
Elliot  V.  Elliot,  2  Ch.  Cas.  231;  Woodman  v.  Morrell,  2  Freem.  33;  Finch 
V.  Finch,  15  Ves.  51;  Birch  v.  Blagrave,  Amb.  266;  Skeats  t;.  Skeats,  2  Y. 
&  C.  Ch.  9;  Gilb.  Lex  Praet.  271;  Murless  v.  Franklin,  1  Swanst.  13;  Crabb 
V.  Crabb,  1  M.  &  K.  519;  Prankerd  v.  Prankerd,  1  S.  &  S.  1;  Hubble  v.  Os- 
borne, 31  Ind.  249. 

'  Redington  v.  Redington,  3  Ridg.  106;  Sidmouth  v.  Sidmouth,  2  Beav. 
455. 

*  Scawen  v.  Scawen,  1  N.  C.  C  65;  Jeans  v.  Cook,  24  Beav.  521 ;  Sidmouth 
V.  Sidmouth,  2  Beav.  455;  Pole  v.  Pole,  1  Ves.  76;  Murless  v.  Franklin,  1 
Swanst.  20;  Willard  v.  Willard,  56  Penn.  St.  119. 

of  gift  or  advancement  when  the  has  a  strong  tendency  to  rebut  the 
father  paid  the  purchase-money,  usual  presumption  of  a  gift  or  ad- 
Paddock  V.  Adams,  56  Ohio  St.  242.  vancement.  Skahen  v.  Irving,  206 
The  fact  that  practically  all  the  111.  597.  The  same  is  true  when  the 
father's  savings  are  invested  in  investment  is  in  the  name  of  the 
property  in  the  name  of  his  daughter  wife.    Pool  v.  Phillips,  167  111.  432. 

234 


CHAP,  v.]  RIGHTS    OF    CREDITORS.  [§  149. 

direct  and  certain,  and  where  possible  should  be  corroborated 
by  other  facts  and  circumstances;  for  courts  will  not  act  upon 
mere  declarations,  if  they  are  conflicting,  vague,  or  inconsistent 
with  themselves.^ 

§  148.  If  a  father  pays  the  purchase-money,  and  the  wife 
or  child,  by  fraud,  or  any  wrongful  act,  and  against  the  inten- 
tion of  the  real  purchaser,  obtains  the  conveyance  in  her  or 
its  name,  the  presumption  of  an  advancement  would  be  re- 
butted, and  the  presumption  of  a  trust  would  arise  for  the 
father.^  So  if  a  son  pay  the  purchase-money  and  the  deed  is 
made  to  his  father  by  mistake,  a  trust  results  to  the  son.^  (a) 

§  149.  If  a  purchaser  and  payer  of  the  money  take  the  con- 
veyance in  the  name  of  a  wife  or  child,  for  the  purpose  of  delay- 
ing, hindering,  or  defrauding  his  creditors,  the  conveyance  is 
void,  or  a  trust  results  which  creditors  can  enforce  to  the  ex- 
tent of  their  debts.^      It  makes  no  difference  by  the  better  opin- 

*  Grey  v.  Grey,  2  Swanst.  597;  Scawen  v.  Scawen,  1  N.  C.  C.  65;  Cart- 
wright  V.  Wise,  14  111.  417;  Cairns  t;.  Colbum,  104  Mass.  247. 

*  Peer  v.  Peer,  3  Stockt.  432;  Hall  v.  Doran,  13  Iowa,  368;  Perkins 
V.  Nichols,  11  Allen,  542;  Persons  v.  Persons,  25  N.  J.  Eq.  250. 

'  Fairhurst  v.  Lewis,  23  Ark.  435.  [See  also  In  re  Peabody,  118  Fed. 
266,  55  C.  C.  A.  360.] 

*  Christ's  Hospital  v.  Budgin,  2  Vem.  684;  Lush  v.  Wilkinson,  5  Ves. 
384;  Townshend  v.  Westacott,  2  Beav.  340;  Stileman  v.  Ashdown,  2  Atk. 
477;  Guthrie  v.  Gardner,  19  Wend.  414;  Jencks  v.  Alexander,  11  Paige, 
619;  Watson  v.  Le  Row,  6  Barb.  487;  Newell  i'.  Morgan,  2  Harr.  225;  Bell 
V.  Hallenback,  Wright,  751;  Edgington  v.  Williams,  id.  439;  Parrish  v. 
Rhodes,  id.  339;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1 ;  Demaree  v.  Driskill, 
3  Blackf.  115;  Doyle  v.  Sleeper,  1  Dana,  531;  Rucker  v.  Abell,  8  B.  Mon. 
566;  Crozier  v.  Young,  3  Mon.  158;  Gowing  v.  Rich,  1  Ired.  553;  Croft  v. 
Arthur,  3  Des.  223;  Elliott  v.  Hart,  10  Ala.  348;  Abney  i-.  KingsLind,  id. 
355;  Cutter  v.  Griswold,  Walk.  Ch.  437;  Kimmel  v.  McRight,  2  Barr,  38; 
McCartney  v.  Bostwick,  32  N.  Y.  53;  Bartlett  v.  Bartlett,  13  Neb.  460, 
quoting  the  text. 

(a)  Likewise  if  the  person  fur-    make  a  gift.     Couch  v.  Harp,  201 
nishing  the  purchase-money  is    in-     Mo.  457. 
sane  or  otherwise   incompetent  to 

235 


§  150.]  RESULTING  TRUSTS.  [CHAP.  V. 

ion  that  the  inte7it  was  not  fraudulent.  A  man  must  be  just 
before  he  is  generous;  and  if  the  property  given  to  the  wafe  was 
bought  with  funds  that  ought  to  have  gone  to  pay  creditors,  the 
property  is  liable  to  them.^  A  parallel  decision  was  reached 
where  a  wife  bought  land  with  her  own  money,  had  it  deeded 
to  her  husband,  and  the  latter  contracted  debts  on  the  faith  of 
being  the  owner  of  the  land.^  If  the  parent  or  husband  was  not 
indebted  at  the  time,  subsequent  creditors  could  not  defeat  the 
title  nor  enforce  the  trust,^  unless  the  settlement  or  conveyance 
was  made  for  the  purpose  of  afterwards  running  in  debt  and 
defrauding  creditors.  In  some  States,  as  in  Pennsylvania  and 
Massachusetts,  an  execution  against  the  debtor  can  be  levied 
directly  upon  the  land  in  the  hands  of  the  trustee;  in  other 
States  the  land  can  only  be  reached  in  equity.  In  Minnesota,  a 
purchase  by  a  husband  and  a  deed  to  the  wife  creates  no  trust  as 
to  him,  but  the  wife  holds  in  trust  for  creditors  unless  fraudulent 
intent  is  disproved.* 

§  150.  A  very  common  case  of  a  resulting  trust  is  where  the 
owner  of  both  the  legal  and  equitable  estate  conveys  the  legal 
title  only,  without  conveying  the  equitable  interest.^  The 
general  rule  in  such  case  is,  that  wherever  it  appears,  upon  a 
conveyance,  devise,  or  bequest,  that  it  was  intended  that  the 
grantee,  devisee,  or  legatee  should  take  the  legal  estate  only, 
the  equitable  interest,  or  so  much  of  it  as  is  left  undisposed  of, 

1  Bridgers  v.  Howell,  27  S.  C.  431. 

2  Roy  V.  McPherson,  11  Neb.  197.  [Laing  v.  Evans,  64  Neb.  454;  Smith 
I'.  Willard,  174  111.  .538;  McCormick  Mach.  Co.?;.  Perkins,  135  Iowa,  64. 
See  also  Hamlen's  Adm'r  v.  Bennett,  52  N.  J.  Eq.  70;  Ingals  v.  Ferguson, 
59  Mo.  App.  299;  Moore  v.  Rawlings,  137  Iowa,  284;  Hews  v.  Kenny,  43 
Neb.  815.] 

*  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Knouff  v.  Thompson,  16  Penn. 
St.  357;  Dillard  v.  Dillard,  3  Humph.  41;  Cutler  v.  Tuttle,  19  N.  J.  Ch.  556. 
[Adams  v.  Collier,  122  U.  S.  382,  391;  Metropolitan  Nat.  B'k  v.  Rogers, 
47  Fed.  148,  151.] 

*  Leonard  v.  Green,  30  Minn.  496. 

'  Morice  v.  Bishop  of  Durham,  10  Ves.  537;  Paice  v.  Canterbury,  14 
Ves.  370. 

236 


CHAP.  V.J         CONVEYANCES    OF    LEGAL   TITLE,    ETC.  [§  150. 

will  result,  if  arising  out  of  the  settlor's  realty,  to  himself  or  his 
heirs ;  if  out  of  his  personal  estate,  to  himself,  his  executors,  or 
administrators.^  (a)  Whether  the  conveyance  was  intended  to 
convey  the  beneficial  as  well  as  the  legal  estate  is  sometimes  a 
matter  of  presumption  by  the  court  from  all  the  circumstances  of 
the  case,  and  sometimes  it  is  expressed  upon  the  instrument 
itself  in  such  manner  that  no  doubts  can  arise.  When  it  is  mat- 
ter of  presumption,  parol  evidence  may  be  received  to  rebut  or 
sustain  the  presumption.^  But  where  the  trust  results  by  force 
of  the  written  instrument,  it  cannot  be  controlled,  rebutted,  or 
defeated  by  parol  evidence  of  any  kind.^  (6) 

'  Lewin  on  Trusts,  115  (5th  Lond.  ed.);  Levet  v.  Needham,  2  Vem.  138; 
Wych  V.  Packington,  3  Bro.  Ch.  44;  Sewell  v.  Denny,  10  Beav.  315;  Halford 
V.  Stains,  16  Sim.  488;  Barrett  v.  Buck,  12  Jur.  771 ;  Cooke  v.  Dealy,  22  Beav. 
196;  Fletcher  v.  Ashbumer,  1  Bro.  Ch.  501;  Re  Cross's  Estate,  1  Sim.  (n.  8.) 
260;  Hogan  v.  Staghom,  65  N.  C  279.  [Bacon's  Estate,  202  Pa.  St.  535; 
In  re  Trusts  of  The  Abbott  Fund  (1900),  2  Ch.  326.] 

^  Cook  V.  Hutchinson,  1  Keen,  50;  Docksey  v.  Docksey,  2  Eq.  Cas.  Ab. 
506;  3  Bro.  P.  C.  39;  North  v.  Crompton,  1  Ch.  Cas.  196;  2  Vem.  253;  Mal- 
labar  v.  Mallabar,  Cas.  t.  Talb.  78;  Petit  v.  Smith,  1  P.  Wms.  7;  Nourse 
V.  Finch,  1  Ves.  Jr.  344;  Walton  v.  Walton,  14  Ves.  318;  Langham  v.  Sanford, 
17  Ves.  435;  Gladding  v.  Yapp,  5  Mod.  56;  Lake  v.  Lake,  1  Wils.  313;  Arab. 
126;  Trimmer  v.  Bayne,  7  Ves.  520;  Williams  v.  Jones,  10  Ves.  77;  Barnes  v. 
Taylor,  27  N.  J.  Eq.  265. 

'  Langham  v.  Sanford,  17  Ves. 435, 442;  19  Ves. 643;  Rachfield  r. Careless, 
2  P.  Wms.  158;  Gladding  v.  Yapp,  5  Mod.  59;  White  v.  Evans,  4  Ves.  21; 
Walton  V.  Walton,  14  Ves.  322;  Petit  v.  Smith,  1  P.  Wms.  7;  Nourse  v.  Finch, 
1  Ves.  Jr.  344;  Ralston  v.  Telfair,  2  Dev.  Eq.  255;  Hughes  v.  Evans,  13  Sim. 
496;  White  v.  Williams,  3  V.  &  B.  72;  Love  v.  Gaze,  8  Beav.  472. 

(a)  See  Western  Union  Tel.  Co.  right  of  action  passed  to  the  grantee, 

V.  Manhattan  Ry.  Co.,  57  N.  Y.  S.  he  held  it  upon  a  resulting  trust  for 

357,   where  a  deed  of  conveyance  the  grantor. 

of  land   expressly   reserved   to   the  (b)  See  Woodruff  v.   Marsh,   63 

grantor  the  right  to  collect  damages  Conn.  125,  where  it  is  said  in  a  dic- 

which   had    been    incurred    by    the  turn  that  resulting  trusts  which  can 

erection  of  an  elevated  structure  in  be  rebutted  by  extrinsic  evidence  are 

front  of  the  premises,  and  the  pur-  those  claimed  by  a  mere  implication 

chase  price  was  adjusted  with  view  of  law,  not  those  arising  upon  failure 

to  the  reservation;  it  was  held  that  of  an  express  trust  for  imperfection 

although  the  attempted  reservation  or  illegality.     The  court  evidently 

was    legally    inoperative    and    the  intended    to    distinguish    between 

237 


§  151.]  RESULTING   TRUSTS.  [CHAP.  V. 

§  151.  No  general  rule  can  be  stated,  that  will  determine 
when  a  conveyance  will  carry  with  it  a  beneficial  interest,  and 
when  it  will  be  construed  to  create  a  trust;  but  the  intention 
is  to  be  gathered  in  each  case  from  the  general  purpose  and 
scope  of  the  instrument.^  A  conveyance  to  a  wife  or  child  will 
be  presumed  to  carry  a  beneficial  interest,^  but  such  considera- 
tion is  only  a  circumstance  of  evidence.^  It  has  been  said,  that 
if  a  man  transfer  property  to  another,  it  must  be  presumed  that 
it  proceeded  from  an  intention  to  benefit  the  other  by  making  the 
gift  and  conferring  the  beneficial  interest;  ^  but  if  such  intention 
cannot  be  inferred  consistently  with  all  the  circumstances  at- 
tending the  transaction,  a  trust  will  result.^  The  heir  is  not  to  be 
excluded  from  a  resulting  trust  upon  bare  conjecture;  ^  there 
must  be  positive  evidence  of  a  benefit  intended  to  the  devisee, 
and  not  merely  negative  evidence  that  none  was  intended  for 
the  heir;  for  the  beneficial  interest  results  to  the  heir,  not  from 
the  intention  of  the  ancestor,  but  because  he  has  expressed  no 

»  Hill  V.  Bishop  of  London,  1  Atk.  620;  Walton  v.  Walton,  14  Ves.  322; 
Starkey  v.  Brooks,  1  P.  Wms.  391;  King  v.  Dennison,  1  Ves.  &  B.  279;  Ellis 
V.  Selby,  1  M.  &  K.  298. 

*  Christ's  Hospital  v.  Budgin,  2  Vem.  683;  Jennings  v.  Selleck,  1  Vem. 
467;  Grey  v.  Grey,  2  Swanst.  598;  ElUot  v.  Elliot,  2  Ch.  Gas.  232;  Hayes 
V.  Kingdom,  1  Vem.  33;  BayUs  v.  Newton,  2  Vera.  28;  Cook  v.  Hutchinson, 
1  Keen,  42;  Cripps  v.  Jee,  4  Bro.  Ch.  472;  Rogers  v.  Rogers,  3  P.  Wms.  193; 
Lloyd  V.  Spillett,  2  Atk.  566;  Robinson  j;.  Taylor,  2  Bro.  Ch.  594;  Smith  v. 
King,  16  East,  283;  Coningham  v.  Mellish,  Pr.  Ch.  31. 

3  Huggins  V.  Yates,  9  Mod.  122;  Wych  v.  Packington,  2  Eq.  Gas.  Ab. 
507;  King  v.  Dennison,  1  Ves.  &  B.  474. 
^  George  v.  Howard,  7  Price,  651. 
^  Custance  v.  Cunningham,  13  Beav.  363. 

•  Halliday  v.  Hudson,  3  Ves.  211;  Kellett  v.  Kellett,  3  Dow,  248;  Am- 
phlett  i;.  Parke,  2  R.  &  M.  227;  Phillips  v.  PhilUps,  1  M.  &  K.  661;  Salter 
V.  Cavanagh,  1  Dru.  &  Walsh,  668. 

cases  where  there  was  no  attempt  to  to  admit  no  extrinsic  evidence  of  an 

dispose  of  all  the  beneficial  interest  intent  of  the  grantor  in  case   the 

and  cases  where  the  attempted  dis-  express  trust  should  fail,  because  the 

position  failed  against  the  expressed  strong   probability   is   that   such   a 

intent  of   the  settlor.     Where  the  contingency  did  not  occur  to  him. 
latter  is  the  case,  it  seems  reasonable 
.    238 


CHAP,  v.]         CONVEYANCES    OF    LEGAL   TITLE,    ETC.  [§  151. 

intention.'  Thus,  a  trust  may  result  upon  a  legacy  given  to  the 
heir;^  but  the  circumstance  of  being  heir,  with  other  circum- 
stances, will  be  strong  evidence  that  no  trust  was  intended.' 
But  in  no  case  will  the  court  permit  the  grantee  to  retain  the 
beneficial  interest,  if  there  was  any  mistake  on  the  part  of  the 
grantor,^  or  any  fraud  on  the  part  of  the  grantee.^  If  the  grantor 
intended  a  fraud  upon  the  law,  there  can  be  no  resulting  trust;  " 
however,  even  in  this  case,  if  the  grantee  admits  the  trust,  the 
court  will  enforce  it.^  If  a  conveyance  has  been  made  upon  a 
valuable  consideration,  there  can  be  no  resulting  trust  to  the 
grantor,  as  the  payment  of  a  valuable  consideration  imports  an 
intention  to  benefit  the  grantee  in  case  the  trusts  declared  fail, 
or  are  imperfectly  declared,  or  do  not  take  effect  for  any  other 
reason.^  (a) 

*  Hopkins  v.  Hopkins,  Cas.  t.  Talb.  44;  Tregonwell  v.  Sydenham,  3  Dow, 
211;  Lloyd  v.  Spillett,  2  Atk.  151;  Habergham  v.  Vincent,  2  Ves.  Jr.  225. 

2  Randall  v.  Bookey,  2  Vem.  425;  Pr.  Ch.  162;  Starkey  v.  Brooks,  1  P. 
Wms.  390,  overruling  North  v.  Crompton,  1  Ch.  Cas.  196;  Killett  v.  Killett, 
1  Ball  &  B.  543;  3  Dow,  P.  C.  248. 

3  Rogers  v.  Rogers,  5  P.  Wms.  193;  Sel.  Ch.  Ca.  81;  Mallabar  v.  Mal- 
labar,  Cas.  t.  Talb.  78;  and  other  cases  above  cited. 

*  Birch  V.  Blagrave,  Amb.  264;  Woodman  v.  Morrell,  2  Freem.  33 
Childers  v.  Childers,  1  De  G.  &  Jon.  482;  Att.  Gen.  v.  Poulden,  8  Sim.  472 

6  Lloyd  V.  Spillett,  2  Atk.  150;  Bam.  388;  Hutchins  v.  Lee,  1  Atk.  488 
Young  V.  Peachy,  2  Atk.  254-257;  2  Vem.  307;  Tipton  v.  PoweU,  2  Cold.  119 

«  Cottingtont;.  Fletcher,  2  Atk.  156;  Chaplin  v.  Chaplin,  3  P.  Wms.  233 
Muckleston  v.  Brown  6,  Ves.  68.  (Sell  v.  West,  125  Mo.  621 ;  Snider  t;.  Udell 
Wooden  ware  Co.,  74  Miss.  354;  Derry  v.  Fielder,  216  Mo.  177.) 

7  Ibid. 

8  Kerlin  v.  Campbell,  15  Penn.  St.  500;  Gibson  v.  Armstrong,  7  B.  Men. 
841;  Brown  v.  Jones,  1  Atk.  158;  Ridout  v.  Dowding,  1  Atk.  419. 

(a)  Thus,  when  the  deed  to  the  S.  furnished  the  consideration  for  a 

trustee  is  upon  a  consideration,  no  conveyance  to  D.  to  hold  upon  an 

trust  can  result  to  the  grantor  upon  imperfectly  declared  trust  for  S.'s 

failure  of  a  declared  trust  for  un-  grandchildren,  a  trust  results  for  the 

certainty.       Trustees     v.     Jackson  benefit  of  S.  upon  failure  of  the  ex- 

Sq.    Church,    84    Md.    173;  .Davis  press  trust,  and  the  facts  rebut  the 

V.   Jemigan,   71    Ark.   494.     But  a  presumption  of  gift  to  D.,  who  was 

trust  in  such  a  case  may  result  for  S.'s   daughter.      In   re   Davis,    112 

the    person    or    persons    furnishing  Fed.  129.    Where  several  have  con- 

the    consideration.      Thus,    where  tributed  the  purchase-money  for  a 

239 


§  152.]  RESULTING   TRUSTS.  [CHAP.  V. 

§  152.  Thus,  if  upon  a  conveyance,  devise,  or  bequest,  a 
trust  is  declared  of  a  part  of  the  estate  only,  or  the  purposes 
of  the  trust  do  not  exhaust  the  whole  beneficial  interest,  the 
trust  in  the  remaining  part  or  interest  will  result  to  the  settlor 
or  his  heirs;  ^  for  the  reason  that  a  declaration  of  trust  as  to 
part  is  considered  sufficient  evidence  that  the  settlor  did  not 
intend  the  donee  to  take  the  beneficial  interest  in  the  whole,  and 
that  the  creation  of  the  trust  was  the  sole  object  of  the  trans- 
action. But  a  distinction  must  be  observed  between  a  devise  to  a 
person  for  a  particular  purpose,  with  no  intention  of  conferring 
upon  him  any  beneficial  interest,  and  a  devise  with  a  view  of 
conferring  the  beneficial  interest,  but  subject  to  a  particular 
charge,  wish,  or  desire.  Thus,  if  a  gift  be  made  to  one  and  his 
heirs,  charged  with  the  payment  of  debts,  it  is  a  gift  for  a  par- 
ticular purpose,  but  not  for  that  purpose  only;  and  if  it  is  the 
intention  to  confer  upon  the  donee  of  the  legal  estate  a  beneficial 
interest  after  the  particular  purpose  is  satisfied  without  ex- 
hausting the  whole  estate,  the  surplus  goes  to  the  donee  and  does 
not  result.^    But  if  the  gift  is  upon  a  trust  to  pay  debts,  that  is  a 

1  Northen  v.  Carnegie,  4  Drew.  587;  Lloyd  v.  Spillett,  2  Atk.  150;  Bam. 
388;  Cottington  v.  Fletcher,  id.  155;  Culpepper  v.  Aston,  2  Ch.  Cas.  115; 
Cook  V.  Gwavas,  cited  Roper  v.  Radcliffe,  9  Mod.  187;  Sherrard  v.  Har- 
borough,  Amb.  165;  Hobart  v.  Suffolk,  2  Verti.  644;  Bristol  v.  Hungerford,  id. 
645;  Halliday  v.  Hudson,  3  Ves.  210  a;  Killett  v.  Killett,  3  Dowl.  P.  C.  248; 
Davidson  v.  Foley,  2  Bro.  Ch.  203;  Levet  v.  Needham,  2  Vem.  138;  Kiricke 
V.  Bransbey,  2  Eq.  Cas.  Ab.  508;  Robinson  v.  Taylor,  2  Bro.  Ch.  589;  Mapp 
V.  Elcock,  2  Phill.  793;  3  H.  L.  Cas.  492;  Read  v.  Stedman,  26  Beav.  495; 
Dawson  v.  Clarke,  18  Ves.  254;  Wych  v.  Packington,  3  Bro.  Ch.  44;  Hill  v. 
Cook,  1  V.  &  B.  173;  Mullen  v.  Bowman,  1  Coll.  N.  C  197;  Loring  v.  Elliott, 
16  Gray,  568.  [Buffington  v.  Maxam,  152  Mass.  477;  Meyer  v.  HoUe,  83 
Tex.  623;  Cagwin  v.  Buerkle,  55  Ark.  5;  Smith  v.  Cooke,  [1891]  A.  C  297; 
Re  Tilt,  74  L.  T.  163.] 

2  Hill  V.  London,  1  Atk.  619;  King  v.  Dennison,  1  V.  &  B.  260;  South- 
ouse  V.  Bate,  2  V.  &  B.  396;  Mullen  v.  Bowman,  1  Coll.  C  C  197;  Dawson 
V.  Clarke,  18  Ves.  247;  Walton  v.  Walton,  14  Ves.  318;  Wood  v.  Cox,  1  Keen, 

parsonage    conveyed    to    a   trustee     tributors.    Heiskell  v.  Trout,  31  W. 
upon  a  trust  which  is  later  declared     Va.  810. 
invalid,  a  trust  results  for  the  con- 

240 


CHAP,  v.]  TRUSTS   DECLARED    AS    TO    PART.  [§  153. 

gift  for  a  particular  purpose  and  nothing  more.  If  the  whole 
estate  is  given  for  that  one  purpose,  and  that  purpose  does  not 
exhaust  the  whole  estate,  the  remainder  results  to  the  donor  or 
his  heirs.^  (a)  Or,  as  Vice-Chancellor  Wood  stated  the  rule: 
(1)  where  there  is  a  gift  to  one  to  enable  him  to  do  something, 
where  he  has  a  choice  whether  he  will  do  it  or  not,  then  the  gift 
is  for  his  own  benefit,  the  motive  why  it  is  given  to  him  being 
stated;  (2)  where  you  find  the  gift  is  for  the  general  purposes 
of  the  will,  then  the  person  who  takes  the  estate  cannot  take 
the  surplus  after  satisfying  a  trust  for  his  own  benefit;  (3) 
where  a  charge  is  created  by  the  will,  the  devisee  takes  the  sur- 
plus for  his  own  benefit,  and  no  trust  is  implied.^ 

§  153.  If  from  the  whole  instrument  there  can  be  gathered  an 
intention  to  benefit  the  donee,  no  trust  in  the  remainder  will  re- 
sult, as  where  a  man  made  his  dearly  beloved  wife  his  sole  heiress 
and  executrix  to  pay  his  debts  and  legacies,  and  there  was  a 

317;  2  M.  &  Cr.  684;  Downer  v.  Church,  44  N.  Y.  647;  Clarke  v.  Hilton, 
L.  R.  2  Eq.  810;  Irvine  v.  SuUivan,  L.  R.  8  Eq.  673. 

1  King  V.  Dennison,  1  V.  &  B.  272;  McElroy  v.  McElroy,  113  Mass.  509. 

2  Barrs  v.  Fewke,  2  Hem.  &  M.  60;  11  Jur.  (n.  .s.)  669;  Sanderson's 
Trust,  3  K.  &  J.  497;  Saltmarsh  v.  Barrett,  29  Beav.  474;  3  De  G.,  F.  &  J. 
279;  Pollard's  Trusts,  32  L.  J.  Ch.  657;  Henderson  v.  Cross,  17  Jur.  (n.  s.) 
177;  Hale  v.  Home,  21  Grat.  112.  In  Cooke  v.  Stationers'  Co.,  3  My.  & 
K.  262,  Sir  John  Leach  said :  "  If  the  devise  to  a  particular,  or  for  a  particular 
purpose,  be  intended  by  the  testator  to  be  an  exception  from  the  gift  to  the 
residuary  devisee,  the  heir  takes  the  benefit  of  the  failure;  but  if  it  be  in- 
tended to  be  a  charge  only  upon  the  estate  devised,  and  not  an  exception  from 
the  gift,  the  devisee  will  be  intitlcd  to  the  benefit  of  the  failure."  Thus  if 
lands  be  devised  to  A.  charged  with  a  legacy  to  B.  if  he  attain  the  age  of 
twenty-one,  the  devise  will  become  absolute  in  A.  if  B.  dies  before  he  be- 
comes twenty-one.  And  the  will  is  to  read  as  if  B.  was  not  named  in  it. 
TregonwcU  v.  Sydenham,  3  Dow,  210;  Sprigg  v.  Sprigg,  2  Vern.  394;  Cruse 
V.  Barley,  3  P.  Wms.  20;  Att.  Gen.  v.  Mihier,  3  Atk.  112;  Croft  v.  Slee,  4 
Ves.  60;  SutcUffe  v.  Cole,  3  Drew.  185;  Jackson  v.  Hurlack,  2  Eden,  263; 
Tucker  v.  Kayess,  4  K.  &  J.  339. 

(a)  See  Smith  v.  Cooke,   [1891]  as  a  bargain  with  the  creditors,  bo 

A.  C.  297,  where  the  general  prin-  that  no  trust  resulted  aa  to  the  sur- 

ciple  was  affirmed  but  the  instru-  plus, 
ment  of  assignment  was  construed 

VOL.  I.  —  16  241 


§  155.]  RESULTING    TRUSTS.  [CHAP.  V. 

residue  after  paying  debts  and  legacies,  there  was  no  resulting 
trust,  for  the  expressions  in  the  will  indicated  an  intention  to 
benefit  the  donee.^  So  any  other  expressions  that  indicate 
an  intention  that  the  donee  shall  be  benefited  after  the  par- 
ticular purposes  are  satisfied,  will  prevent  a  trust  from  resulting.^ 
So  expressions  of  affection  or  relationship  will  be  evidence  upon 
the  question  whether  a  trust  was  intended  to  result  after  the  par- 
ticular trusts  are  satisfied.^  If  the  donee  is  an  infant  incapable 
of  executing  a  trust,  or  a  married  woman,  it  will  be  evidence 
upon  the  same  question.^  But  if  from  the  whole  will  it  is  ap- 
parent that  the  donee  shall  not  take  a  beneficial  interest,  all 
such  circumstances  go  for  nothing.^ 

§  154.  If  the  donee,  to  whom  an  estate  is  given  upon  a  trust 
declared  as  to  part,  is  also  the  heir,  or  other  person  to  whom  the 
trust  for  the  remainder  would  result,  or  if  he  is  one  of  a  class, 
such  gift  to  him  will  not  prevent  him  from  taking  by  the  result- 
ing trust  the  part  that  may  come  to  him.^  So  a  legacy  or  other 
beneficial  gift  to  him  will  not  exclude  him  from  the  resulting  in- 
terest,' even  if  the  interest  given  him  is  to  arise  out  of  the  de- 
clared trust.^ 

§  155.  The  doctrine  of  resulting  trusts,  where  a  trust  is  de- 
clared as  to  part  only,  was  formerly  much  discussed  in  cases  of 
gifts  to  executors  for  the  payment  of  debts  and  legacies.  In 
such  cases  at  common  law  the  appointment  of  the  executor  enti- 

'  Rogers  v.  Rogers,  3  P.  Wms.  193;  Cook  v.  Hutchinson,  1  Keen,  42. 

«  Meredith  v.  Heneage,  1  Sim.  555;  Wood  v.  Cox.  2  M.  &  Cr.  692;  Cook 
V.  Hutchinson,  1  Keen,  42. 

»  Rogers  v.  Rogers,  3  P.  Wms.  193;  Coningham  v.  Mellish,  Pr.  Ch.  31; 
King  V.  Dennison,  1  V.  &  B.  274;  Hobart  v.  Suffolk,  2  Vem.  644. 

*  Williams  t;.  Jones,  10  Ves.  77;  Blinkhom  v.  Feast,  2  Ves.  Sr.  27. 
«  King  V.  Mitchell,  8  Pet.  349;  King  v.  Dennison,  1  V.  &  B.  275. 

•  Hennershotz's  Estate,  16  Pa.  St.  435. 

^  Farrington  v.  Knightly,  1  P.  Wms.  545;  Rutland  v.  Rutland,  2  P.  Wms. 
213;  Andrews  v.  Clark,  2  Ves.  Sr.  162;  North  v.  Pardon,  2  Ves.  Sr.  495. 

'  Starkey  v.  Brooks,  1  P.  Wms.  390;  Randal  v.  Bookey,  2  Vem.  425; 
Pr.  Ch.  162;  Killett  v.  Killett,  1  B.  &  B.  543;  3  Dowl.  P.  C  248. 

242 


CUAP.  v.]      WIIEIIK  TRUST  FAILS  OK    IS  NOT  DECLARED.       [§   156. 

tied  him,  both  at  law  and  equity,  to  all  the  remainder  of  the 
personal  property  after  the  payment  of  debts  and  legacies,  unless 
it  was  specially  disposed  of  by  the  testator  in  the  will.  Courts 
were  always  astute  to  find  circumstances  to  repel  the  beneficial 
interest  in  the  executor  and  to  raise  a  resulting  trust  for  the  next 
of  kin,  or  heir-at-law;  and  it  was  finally  enacted,  1  Will.  IV.,  c. 
40,  that  such  executors,  should  be  trustees  of  any  residue,  un- 
less it  plainly  appeared  by  the  will  that  they  were  intended  to 
take  the  residue  beneficially.^  In  the  United  States  the  rule 
never  prevailed,  but  executors  always  took  as  trustees  for  those 
entitled  to  the  distribution  of  the  personal  estate,  unless  it  was 
expressly  disposed  of  to  some  other  persons,  or  unless  it  was 
expressly  given  to  the  executor  beneficially.^ 

§  156.  In  this  connection  an  important  exception  to  the  gen- 
eral doctrine  of  resulting  trusts  should  be  stated.  If  property 
is  given  to  trustees  by  grant  or  devise  for  charitable  uses  gener- 
ally, and  the  particular  purpose  is  not  declared  at  all,  or,  if  de- 
clared, does  not  exhaust  the  whole  estate,  there  will  be  no  re- 
sulting trust  for  the  donor,  his  heirs,  or  next  of  kin,  in  either 
case;  nor  will  the  donees  take  any  beneficial  interest,  but  the 
court  will  direct  the  trustees  to  administer  the  whole  estate 
under  some  scheme  for  charitable  purposes.^  (a) 

1  See  2  Story,  Eq.  Jur.  §  1208,  and  the  elaborate  note  cited  from  Fon. 
Eq.  B.  2,  c.  .5,  §  3,  note  {k). 

2  Hill  on  Trustees,  1234  (Am.  ed.);  2  Story  Eq.  Jur.  §§  1208,  1209;  as 
the  doctrine  has  never  prevailed  in  America,  it  is  not  worth  while  to  state 
all  the  learning  and  nice  distinctions  of  the  courts.  They  will  be  found  in 
Hill,  Story,  and  Fonblanque  aa  above  cited. 

»  Cook  V.  Dunkenfield,  2  Atk.  567;  Metford  School,  8  Co.  130;  Mog- 
gridge  v.  Thackwell,  7  Ves.  73;  Att.  Gen.  i-.  Bristol,  2  J.  &  W.  308;  MiUs 
V.  Farmer,  1  Mer.  55;  Att.  Gen.  v.  Haberdasher's  Co.,  4  Bro.  Ch.  103;  see 
■post,  chapter  upon  Charitable  Trusts,  where  this  matter  is  stated  at 
large. 

(a)  As  will  appear  in  the  chapter  the  power  of  a  court  of  equity  to 
on  charitable  trusts  there  is  an  im-  enforce  a  trust  for  charity  in  general, 
portant  difference  of  authority  as  to    and  as  to  the  validity  of  such  a  trust. 

243 


§  157.]  RESULTING   TRUSTS.  [cHAP.  V. 

§  157.  If  a  gift  is  made  by  deed  or  will  upon  trust,  and  no 
trust  is  declared/  or  a  bequest  is  made  to  one  named,  as  exec- 
utor, "to  enable  him  to  carry  into  effect  the  trusts  of  the  will," 
and  none  are  declared,^  or  a  gift  is  made  upon  trusts  thereafter 
to  be  declared,  and  no  declaration  is  ever  made,^  the  legal  title 
only  will  pass  to  the  grantee  or  devisee,  while  a  trust  in  the 
equitable  interest  will  result  to  the  settlor,  his  heirs,  or  legal 
representatives,  according  to  the  nature  of  the  property,  whether 
real  or  personal ;  for  it  appears  upon  the  instrument  itself  that 
the  legal  title  alone  was  intended  for  the  first  taker,  and  that  the 
equitable  interest  was  intended  to  go  to  some  other  person,  and 
as  such  other  person  cannot  take  the  equitable  interest  for  want 
of  a  declaration  of  the  trust,  it  results  to  the  settlor  or  his  heirs.* 
So  if  a  testator  says  that  he  gives  the  residue,  and  stops  there,^  or 
if  he  cancels  a  residuary  bequest  by  drawing  a  line  through  it.^ 
But  if  it  should  plainly  appear  from  the  whole  instrument  that 
the  donee  is  to  take  beneficially  in  case  the  trusts  are  not  de- 
clared, no  trust  will  result  to  the  owner  or  heir.^ 


1  Att.  Gen.  v.  Windsor,  8  H.  L.  Ca.  369;  24  Beav.  679;  Gloucester  v. 
Wood,  1  H.  L.  Gas.  272;  3  Hare,  131;  Dawson  v.  Clark,  18  Ves.  254;  Dun- 
nage V.  White,  1  J.  &  W.  583;  Morice  v.  Durham,  10  Ves.  537;  WooUett  v. 
Harris,  5  Madd.  452 ;  Southouse  v.  Bate,  2  Ves.  &  B.  396;  Goodere  v.  Lloyd,  3 
Sim.  538;  Pratt  v.  Sladden,  14  Ves.  198;  Anon.,  1  Com.  345;  Penfold  v.  Bouch, 
4  Hare,  271;  Brown  v.  Jones,  1  Atk.  101;  Sidney  v.  Shelley,  19  Ves.  359; 
EmbljTi  V.  Freeman,  Pr.  Ch.  542;  Coard  v.  Holdemess,  20  Beav.  147;  Long- 
ley  V.  Longley,  L.  R.  13  Eq.  137. 

2  Barrs  v.  Fewke,  2  Hem.  &  M.  60. 

'  London  v.  Garway,  2  Vem.  571;  Collins  v.  Wakeman,  2  Ves.  Jr.  683; 
Embljmt).  Freeman,  Pr.  Ch.  541;  Fitch  v.  Weber,  6  Hare,  145;  Brookman  v. 
Hales,  2  V.  &  B.  45;  Brown  v.  Jones,  1  Atk.  188;  Sidney  v.  Shelley,  19  Ves. 
352;  Taylor  v.  Haygarth,  14  Sim.  8;  Flint  v.  Warren,  16  Sim.  124;  Onslow 
V.  Wallis,  1  H.  &  Tw.  513;  1  MoN.  &  G.  506;  Jones  v.  Goodchild,  3 
P.  Wms.  33;  Sturtevant  v.  Jaques,  14  Allen,  526;  Shaw  v.  Spencer,  100  Mass. 
388. 

*  Aston  V.  Wood,  L.  R.  6  Eq.  419;  Jones  v.  Bradley,  L.  R.  3  Eq.  635. 

*  Cloyne  v.  Young,  2  Ves.  Sr.  91;  Langham  v.  Sandford,  17  Ves.  435; 
Mapp  V.  Elcock,  2  Phill.  793. 

'  Mence  v.  Mence,  18  Ves.  348;  Skrymsher  v.  Northcote,  1  Swanst.  566. 
'  Sidney  v.  Shelley,  19  Ves.  352.    Whether  a  trust  results  to  a  debtor  in 
an  unclaimed  dividend.    Dillaye  v.  Greenough,  45  N.  Y.  438. 

244 


CHAP,  v.]     WHERE  TRUST  FAILS  OR  IS  NOT  DECLARED.  [§   158. 

§  158.  It  is  to  be  observed,  however,  that  the  intention  of  the 
instrument  is  to  be  gathered  from  its  general  scope;  hence, 
although  the  words  Jipon  trust  are  very  strong  evidence  of  the 
donor's  intention  not  to  confer  the  beneficial  interest  upon  the 
donee,^  yet  it  may  be  negatived  by  the  context,  and  the  general 
interpretation  of  the  whole  paper;  ^  so,  if  the  donee  is  called  a 
trustee,  the  term  may  be  shown  to  apply  to  one  of  two  funds, 
and  the  donee  may  take  a  beneficial  interest  in  the  other,^  or 
it  may  be  so  used  as  to  be  a  mere  descripto  persoruB,  and  although 
no  beneficiary  is  named,  a  trust  does  not  necessarily  result  to 
the  grantor.'*  On  the  other  hand  it  may  appear,  from  the  whole 
instrument,  that  the  donee  is  not  to  take  the  beneficial  interest, 
although  the  words  upon  tru^t,  or  trustee,  are  not  used ;  as  where 
there  is  a  direction  that  the  donee  shall  be  allowed  his  costs  and 
expenses  out  of  the  fund  given  him,  which  would  be  without 
meaning  if  he  took  the  whole  beneficial  interest  in  the  fund.^ 
But  if  the  conveyance  is  by  deed  for  a  valuable  consideration,  the 
grantee  will  take  the  beneficial  interest  if  the  trusts  fail  to  be 
declared,  or  fail  in  any  way;  for  there  can  be  no  resulting  trusts 
where  the  grantee  pays  a  valuable  consideration  for  the  estate.^ 
Where  a  will  contained  in  substance  this  clause,  "  I  give  to  my 
executor,  P.,  $800  to  have  and  to  hold  the  same  to  the  use  of  S. 
as  follows:  I  desire  in  case  S.  should  at  any  time  need  assistance 
or  come  to  want,  that  my  executor  should  expend  such  part  of 
said  $800  as  will  make  her  comfortable  and  keep  her  so  during 

»  Hill  V.  London,  1  Atk.  618;  WooUett  v.  Harris,  5  Md.  452;  Sturtevant 
V.  Jaques,  14  Allen,  526;  Shaw  v.  Spencer,  100  Mass.  526. 

^  Coningham  v.  Mellish,  Pr.  Ch.  31;  Dawson  v.  Clark,  15  Vee.  409;  18 
Ves.  247;  Hughes  v.  Evans,  13  Sim.  496;  Cook  v.  Hutchinson,  1  Keen,  42; 
Dillaye  v.  Greenough,  45  N.  Y.  438. 

»  Gibbs  V.  Rumsey,  2  V.  &  B.  294;  Pratt  v.  Sladden,  14  Ves.  193;  Battely 
V.  Windle,  2  Bro.  Ch.  31;  Bingham  v.  Stewart,  13  Mum.  106;  Pratt  v.  Beau- 
pre,  13  Minn.  187;  Dillaye  v.  Greenough,  45  N.  Y.  438. 

*  Dillaye  v.  Greenough,  45  N.  Y.  438. 

»  Saltmarsh  v.  Barrett,  3  De  G.,  F.  &  J.  279;  29  Beav.  474. 

"  Brown  v.  Jones,  1  Atk.  158;  Ridout  v.  Dowding,  id.  419;  Kerlin  v.  Camp- 
bell, 15  Penn.  St.  500.  (Davis  v.  Jemigan,  71  Ark.  494,  holding  that  the 
recital  of  payment  of  a  consideration  by  the  grantee  is  conclusive  upon 
the  grantor.] 

245 


§  159.]  RESULTING   TRUSTS.  [CHAP.  V. 

her  life.  The  remainder,  if  any,  of  said  $800,  at  the  decease  of 
S.  I  give  to  the  said  P.  and  his  heirs,"  it  was  held  that  P.  held  the 
money  to  the  use  of  S.  during  her  life,  and  whether  she  was  in 
need  or  no  must  pay  the  income  to  her,  and  if  in  need  must  ex- 
pend for  her  such  part  of  the  principal  as  might  be  requisite  to 
make  her  comfortable.* 

§  1 59.  If  a  trust  for  a  specific  purpose  fails  by  the  failure  of  the 
purpose,  the  property  reverts  to  the  donor  or  his  heirs.^  If  the 
gift  is  made  upon  a  trust,  and  the  trust  is  insufficiently  or  inef- 
fectually declared,  as,  if  it  is  too  indefinite,  vague,  and  uncer- 
tain to  be  carried  into  effect,  it  will  result  to  the  settlor,  his 
heirs,  or  representatives.^  Whether  a  trust  is  insufficiently 
declared  or  not,  depends  of  course  upon  the  particular  construc- 
tion to  be  given  to  each  individual  deed  or  will ;  *  and  so, 
whether  a  trust  is  too  vague  to  be  executed  or  not,  depends  upon 
the  interpretation  given  to  each  instrument.^  If  the  declara- 
tion of  trust  is  too  imperfect  to  establish  that  purpose,  and  yet 
plainly  shows  that  the  intention  was  that  the  donee  should  not 
take  beneficially,  and  that  the  sole  purpose  of  the  gift  or  grant 
was  to  carry  out  the  purpose  of  the  trust,  which  fails,  the  donee 
will  take  in  trust  for  the  donor  or  his  heirs;  (a)  but  if  it  appear, 

1  Cobum  V.  Anderson,  131  Mass.  513. 

^  Gumbert's  App.,  110  Penn.  St.  496.  [Jenkins  v.  Jenkins'  Univ.,  17 
Wash.  160.] 

3  WilUams  v.  Kershaw,  5  CI.  &  Fin.  Ill;  Ellis  v.  Selby,  7  Sim.  352;  1  M. 
&  C.  286;  Fowler  v.  Garlike,  1  R.  &  M.  232;  Morice  v.  Durham,  9  Ves.  399: 
10  Ves.  522;  Kendall  v.  Granger,  5  Beav.  300;  Vesey  v.  Jamson,  1  S.  &  S. 
69;  Stubbs  v.  Sargon,  3  M.  &  C.  500;  2  K.  255;  Leslie  v.  Devonshire,  2  Bro. 
Ch.  187;  James  v.  Allen,  3  Mer.  17;  Sturtevant  v.  Jaques,  14  Allen,  526; 
Shaw  V.  Spencer,  100  Mass.  388.  [Minot  v.  Att.  Gen.,  189  Mass.  176;  Re 
Wilcock,  Wilcock  v.  Johnson,  62  L.  T.  317;  Cagwin  v.  Buerkle,  55  Ark.  5; 
Columbian  University  v.  Taylor,  25  App.  D.  C.  124;  Woodruff  v.  Marsh, 
63  Conn.  125;  Johnson  v.  Johnson,  92  Tenn.  559.] 

*  Ellis  V.  Selby,  1  M  &  K.  298. 

'  Ibid. 

(a)  Thus  where  a  bequest  is  made  in  a  letter  which  is  not  part  of  the 
in  trust  for  a  purpose  to  be  set  forth     will,    the    attempted    express    trust 

246 


CHAP,  v.]      WHERE  TRUST  FAILS  OR  IS  NOT  DECLARED.        [§  159. 

from  the  whole  instrument,  that  some  beneficial  interest  was 
intended  for  the  donee,  or  that  he  was  intended  to  take  bene- 


failing  because  not  sufficiently  de- 
clared and  the  facts  not  raising  a 
trust  ex  mcUefido,  a  trust  for  the 
next  of  kin  of  the  testator  will 
result,  since  it  is  clear  that  the  tes- 
tator did  not  intend  the  legatee  to 
take  beneficially.  Bryan  v.  Bigelow, 
77  Conn.  604;  Chase  i;.  Stockett,  72 
Md.  235,  243;  Heidenheimer  v. 
Bauman,  84  Tex.  174.  See  also 
Pay  ton  v.  Almy,  17  R.  I.  605;  Kelly 
«;.  Nichols,  17  R.  I.  306;  18  R.  I.  62. 
Where  a  bequest  or  devise  ap- 
pears on  the  face  of  the  will  to  be 
absolute,  but  the  legatee  or  devisee 
has  agreed,  or  has  an  understanding, 
with  the  testator  to  take  the  prop- 
erty upon  a  trust  which  would  have 
been  illegal  if  set  forth  in  the  will, 
a  trust  will  result  for  the  heirs  or 
next  of  kin  of  the  testator,  just  as 
would  have  been  the  case  if  the 
illegal  trust  had  been  set  forth  in 
the  will.  Edson  v.  Bartow,  154 
N.  Y.  215;  Amherst  College  v.  Ritch, 
151  N.  Y.  282;  O'Hara  v.  Dudley, 
95  N.  Y.  403;  Gore  v.  Clarke,  37 
S.  C.  537,  20  L.  R.  A.  465.  But 
where  the  legatee  or  devisee  has 
been  merely  requested  or  advised 
to  use  the  property  for  a  purpose 
to  which  the  testator  could  not 
have  devoted  it  by  will,  and  such 
request  or  recommendation  is  not 
intended  to  impose  an  obligation 
upon  him,  and  he  has  not  entered 
into  any  agreement  or  understand- 
ing with  the  testator  to  carry  out 
the  latter's  wishes,  no  trust  will 
result,  even  though  the  legatee  or 
devisee  chooses  to  treat  the  request 
as  a  command  and  to  devote  the 
property  to  the  purposes  to  which 


the  testator  himself  could  not  have 
devoted  it.  Sale  v.  Thomberry, 
86  Ky.266;  Olliffe  v.  Wells,  130  Mass. 
221;  Fairchild  v.  Edson,  154  N.  Y. 
199;  Hodnett's  Appeal,  154  Pa.  St. 
485;  Shultz's  Appeal,  80  Pa.  St. 
396.  In  such  a  case  the  property 
having  become  absolutely  the  prop- 
erty of  the  devisee  or  legatee,  his 
disposition  of  it  is  entirely  his  own 
act,  not  the  act  of  the  testator,  al- 
though the  latter's  wishes  are  carried 
out  and  the  provisions  of  a  statute 
regarding  disposition  by  will  are 
thereby  substantially  evaded. 

If,  however,  it  is  shown  that  the 
testator  and  the  legatee  or  devisee 
have  entered  into  a  previous  under- 
standing that  the  latter  will  carry 
out  the  former's  wishes,  the  gift 
will  not  be  treated  as  an  absolute 
one,  but  a  trust  will  result  for  the  heirs 
or  next  of  kin  of  the  testator.  (See 
cases  cited  supra,  this  note.)  When 
the  disposition  agreed  upon  between 
the  legatee  or  devisee  and  the  tes- 
tator is  one  which  the  latter  could 
legally  have  made  by  will  and  the 
legatee  or  devisee  is  willing  to  carry 
out  the  agreement,  he  will  usually 
be  permitted  to  do  so.  Such  an 
agreement  is  not  illegal  in  itself, 
although  it  may  be  secret.  Gil- 
patrick  v.  Glidden,  81  Me.  137; 
Olliffe  V.  Wells,  130  Mass.  221; 
Powell  I'.  Yearance,  73  N.  J.  Eq. 
117;  In  re  Washington's  Estate, 
220  Pa.  St.  204.  But  see  Moran  v. 
Moran,  104  Iowa,  216.  When  he 
refuses  to  carry  out  his  agreement 
the  decisions  are  in  conflict.  Many 
cases  have  raised  a  constructive 
trust  ex  maleficio,   which  in  eflfect 

247 


§   160.]  RESULTING   TRUSTS.  [CHAP.  V. 

ficially  in  case  the  particular  purpose  fails,  no  trust  will  result, 
but  he  will  take  the  estate  discharged  of  all  burdens.^ 

§  160.  Where  a  gift  is  made  upon  trusts  that  are  void,  in 
whole  or  in  part,  for  illegality,^  or  that  fail  by  lapse,  or  other- 
wise, during  the  life  of  the  donee,^  a  trust  will  result  to  the 
donor,  his  heirs,  or  legal  representatives,  if  the  property  is  not 
otherwise  disposed  of.  (a)  Thus,  where  the  gift  or  trust  is  void 
by  statute,  as  a  disposition  in  favor  of  persons  or  objects  prohib- 
ited from  taking,^  or  given  at  a  time  and  in  a  manner  forbidden, 
as  in  violation  of  the  statutes  of  mortmain,  or  similar  statutes,^ 
or  where  the  gift  contravenes  some  policy  of  the  law,  as  tending 
to  a  perpetuity,^  or  where  it  fails  by  the  death  of  some  bene- 

1  Gibbs  V.  Rumsey,  2  Ves.  &  B.  294;  Cawood  v.  Thompson,  1  Sm.  & 
Gif.  409;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Hughes  v.  Evans,  13  Sim. 
496;  Ralston  v.  Telfair,  2  Dev.  Eq.  255. 

2  Turner  v.  Russell,  10  Hare,  204;  Cook  v.  Stationers'  Co.,  3  M.  &  K. 
262;  Carrick  v.  Errington,  2  P.  Wms.  361;  Tregonwell  t;.  Sydenham,  3  Dow, 
194;  Arnold  v.  Chapman,  7  Ves.  108;  Jones  v.  Mitchell,  1  S.  &  S.  290;  Page 
V.  Leapingwell,  18  Ves.  463;  Pilkington  v.  Boughey,  12  Sim.  114;  Gibbs  v. 
Rumsey,  2  Ves.  &  B.  294;  Stevens  v.  Ely,  1  Dev.  Eq.  493;  Dashiel  v.  Att. 
Gen.,  6  Har.  &  J.  1;  Lemmond  v.  People,  6  Ired.  Eq.  137. 

»  Williams  v.  Coade,  10  Ves.  300;  Ackroyd  v.  Smithson,  1  Bro.  Ch.  503; 
Spink  V.  Lewis  3  id.  335  ;  Hutcheson  v.  Hammond,  id.  128;  Muckleston  v. 
Brown,  6  Ues.  63;  Davenport  v.  Coltman,  12  Sim.  610;  Cruse  v.  Barley,  3 
P.  Mms.  22;  Hawley  v.  James,  5  Paige,  318;  Gwynn  v.  Gwyma,  27  S.  C.  526. 
[See  Re  Tilt,  74  L.  T.  163.] 

*  Carrick  v.  Errington,  2  P.  Wms.  361;  Davers  v.  Dewes,  3  id.  43. 

'  Att.  Gen.  v.  Weymouth,  Amb.  20;  Jones  v.  Mitchell,  1  S.  &  S.  294; 
West  V.  Shuttleworth,  2  M.  &  K.  684;  Acts  39  &  40  Geo.  IV.  c.  98;  Eyre 
V.  Marsden,  2  Keen,  564;  McDonald  v.  Bryce,  id.  276;  Lemmond  v.  People, 
6  Ired.  Eq.  137. 

'  Tregonwell  v.  Sydenham,  3  Dow,  194;  Leake  v.  Robinson,  2  Mer. 

is  the  same  as  the  parol  but  unen-  N.  Y.  199,  768;  10  Harv.  L.  Rev. 

forceable    express    trust.      For    an  445;  McDermith    v.   Voorhees,    16 

examination   of   the   cases   on   this  Colo.   402;  note  to  Neill  v.  Keese, 

point  see  infra  under  constructive  (Texas),  51  Am.  Dec.  746.   Or  where 

trusts,  §  181,  note.    If  a  constructive  an    attempted    express    trust    fails 

trust  is  not  raised  it  would  seem  that  because     not     properly     declared. 

a  trust  for  the  heirs  or  next  of  kin  Woodruff  v.  Marsh,  63  Conn.  125; 

of  the  testator  ought  to  result.  Johnson  v.  Johnson,  92  Tenn.  559; 

(a)  See    Edson  v.    Bartow,   154  Re  Wilcock,  62  L.  T.  317. 

248 


CHAP,  v.]      WHERE  TRUST  FAILS  OR  IS  NOT  DECLARED.    [§  160  a. 

ficial  donee  or  cestui  que  trust,^  a  trust,  to  the  extent  of  the 
estate  given,  will  result  to  the  donor,  or  his  heirs,  or  legal  repre- 
sentatives, if  it  is  not  otherwise  disposed  of.  If  the  purposes  of 
a  trust  fail  or  are  completely  performed,  the  trustees  hold  the 
estate  for  the  heirs  at  law  as  a  resulting  trust.^  So  if  a  trust  for 
a  particular  purpose  fail,  by  the  dissolution  of  a  corporation,  or 
other  organized  body,  a  trust  created  for  their  particular  benefit 
will  result  to  the  donor's  heirs.^  All  that  the  donor  has  not  given 
out  of  himself  remains  in  him,  and  if  he  has  not  provided  to  whom 
the  property  shall  belong  on  failure  or  determination  of  the 
trust,  that  right  is  still  his,  and  he  may  convey  the  property 
subject  to  the  trust.^  In  all  cases,  if  the  trust  arises  or  results 
by  presumption  of  law,  it  may  be  rebutted  as  to  instruments 
inter  vivos  by  parol  evidence  that  it  was  the  intention  of  the  set- 
tlor that  the  donee  should  take  the  surplus  beneficially,  or  the 
whole  estate  if  the  trust  failed  in  toto  ;  ^  but  where  the  trust 
results,  not  by  presumption  of  law  nor  from  the  facts  and  cir- 
cumstances, but  from  the  construction  and  force  of  a  written  in- 
strument, no  parol  evidence  can  be  introduced  to  control  such 
construction  and  force.^ 

§  160  a.  In  England,  the  heir  and  the  next  of  kin  or  legal 
representatives  are  not  the  same  persons,  or  they  have  not  the 
same  rights  and  interests;  consequently  questions  of  some  diffi- 
culty arise  as  to  whether  a  trust  in  property  results  to  the  heir, 
or  to  the  next  of  kin,  or  the  legal  representatives.    The  general 

363;  Marshall  r.  Holloway,  2  Swanst.  432;  Southampton  v.  Hertford,  2 
V.  &  B.  54;  Curtis  v.  Lukin,  5  Beav.  147;  Boughton  v.  James,  1  Call,  26; 
1  H.  L.  Cas.  406;  Brown  v.  Stoughton,  14  Sim.  369;  Scarisbrick  v.  Skel- 
mersdale,  17  Sim.  187;  Furrin  v.  Newcomb,  3  K.  &  J.  16. 

1  Ackroyd  v.  Smithson,  1  Bro.  Ch.  503;  Cox  v.  Parker,  22  Beav.  188; 
Harker  v.  Reilly,  4  Del.  Ch.  72;  Bond  v.  Moore,  90  N.  C.  239. 

'  Packard  v.  Marshall,  138  Mass.  383.  [Hopkins  v.  Grimshaw,  165  U.  S. 
342,  352.] 

'  Esterbrooks  v.  Tillinghast,  5  Gray,  17. 

«  Schlessinger  v.  Mallard,  70  Cal.  326. 

«  Ante,  §§  139,  140,  145,  147;  Cook  v.  Hutchinson,  1  Keen,  50. 

•  Ante,  §  150;  Langham  v.  Sanford,  17  Ves.  442. 

249 


§  160  a.]  RESULTING   TRUSTS.  [cHAP.  V. 

rule  is,  if  the  property  is  real  estate,  that  the  trust  results  to  the 
heir;  if  personal  property,  to  the  next  of  kin  under  the  statutes 
of  distribution,  or  to  the  legal  representatives.  But  suppose  a 
testator  has  devised  real  estate  in  trust  and  directed  it  to  be  sold 
and  the  proceeds  applied  to  purposes  named,  and  the  real  estate 
is  converted  into  money,  and  the  trust  fails  in  whole  or  in  part; 
or  suppose  money  is  given  in  trust,  and  there  is  a  direction  to 
invest  it  in  lands,  which  is  done,  and  the  trust  fails,  to  whom  does 
the  trust  result,  to  the  heir  as  real  estate,  or  to  the  next  of  kin  as 
personal  property?  Such  questions  are  not  important  in  the 
United  States,  for  the  reason  that  in  most  if  not  all  the  States 
the  same  persons  take  both  the  real  and  personal  estate  of  an 
ancestor  in  the  same  proportion  and  with  the  same  rights,  and 
it  is  comparatively  unimportant  whether  the  trust  results  as  real 
or  personal  property.^  There  is,  however,  one  question  still  im- 
portant in  the  United  States,  and  that  is,  does  the  trust  result 
to  the  heirs-at-law,  or  to  the  residuary  devisees  or  legatees? 
The  donor,  settlor,  or  testator  still  retains  such  an  interest  in 
property  given  by  him  in  trust,  that  the  interest  which  results 
upon  the  failure  of  the  trusts  created  by  him  may  be  devised  by 
him,  and  the  question  in  each  case  is  whether  the  resulting  inter- 
est becomes  a  part  of  the  residue  and  passes  to  the  residuary 
legatee,  if  there  is  one,  or  whether  it  passes  to  the  heirs.  The 
question  may  be  stated  in  another  form,  thus:  has  the  testator 
died  intestate  as  to  the  interests  which  result  to  him  upon  a 
failure  of  the  trusts,  or  do  the  pro\asions  of  the  will  embrace  such 
interests  and  convey  them  to  some  person  or  persons,  or  class  of 
persons  named?  The  distinction  between  the  heirs  and  the 
residuary  legatees  is  that  the  residuary  legatees  claim  U7ider  the 
will,  and  the  heirs  claim  dehors  the  will.  All  the  cases  that  can 
arise  must  depend  upon  the  intention  of  the  donor  or  settlors, 
and  upon  the  construction  of  each  particular  will.  If  the  sub- 
ject-matter of  the  bequest  that  fails  is  personal  estate,  the  resi- 
duary legatee  will  take  all  that  results;  for  a  general  residuary 

*  See  all  the  English  cases  cited  and  the  nice  distinctions  drawn,  Lewin 
on  Trusts,  121-132  (5th  ed.);  Hill  on  Trustees,  127-143. 

250 


CHAP,  v.]     WHERE  TRUST  FAILS  OR  IS  NOT  DECLARED.    [§  IGO  O. 

bequest  is  always  held  to  carry  every  interest,  whether  undis- 
posed of  in  the  will,  or  undisposed  of  in  any  event.^  Therefore 
it  is  only  where  the  will  contains  no  residuary  clause  that  the 
next  of  kin  (or  heirs  in  the  United  States)  can  assert  any  claim. 
There  is,  however,  this  obvious  remark  to  be  made:  that  if  the 
residuum  is  itself  given  upon  a  trust  that  fails,  it  of  course  re- 
sults to  the  next  of  kin  or  heirs.^  But  a  different  rule  is  applied 
at  common  law  to  gifts  of  real  estate.  If  real  estate  was  be- 
queathed upon  trusts  that  were  void,  or  that  failed,  the  real 
estate  did  not  pass  to  the  residuary  devisee,  but  resulted  to 
the  heir-at-law,  for  the  reason  that  nothing  passed  by  the 
gift  of  the  residue  except  what  was  intended  to  pass,  and  a  be- 
quest of  real  estate  for  a  particular  purpose  indicated  a  plain  in- 
tention not  to  embrace  it  in  the  residuary  bequest,  and  although 
it  might  be  void  or  fail,  yet  it  was  so  far  operative  as  to  indicate 
the  intention  of  the  donor  not  to  allow  it  to  pass  under  the  resi- 
duary clause  of  the  will.  The  common  law  was  altered  by  1 
Vict.  Ch.  26,  and  real  estate  is  governed  by  the  same  rule  as 
personal  estate.^ 

*  Dawson  v.  Clarke,  15  Ves.  417;  Brown  v.  Higgs,  4  Ves.  708;  8  Ves. 
570;  Shanley  v.  Baker,  4  Ves.  732;  Oke  v.  Heath,  1  Ves.  141;  Cambridge  v. 
Rous,  8  Ves.  25;  Cooke  v.  Stationers'  Co.,  3  M.  &  K.  264;  Bland  v.  Bland, 
2  J.  &  W.  406;  Jones  v.  Mitchell,  1  S.  &  S.  298.  Sir  William  Grant  said  that 
it  must  be  a  very  peculiar  case  indeed  in  which  there  can  be  at  once  a  residu- 
arj'  clause  and  a  partial  intestacy  unless  some  part  of  the  residue  be  ill  given. 
Leake  v.  Robinson,  2  Mer.  392;  King  v.  WoodhuU,  3  Edw.  Ch.  79;  Swinton 
V.  Egleston,  3  Rich.  Eq.  201;  Hamberlin  v.  Terr>',  1  Sm.  &  M.  Ch.  589; 
Johnson  v.  Johnson,  3  Ired.  Eq.  427;  Marsh  v.  Wheeler,  2  Edw.  Ch.  156; 
Com.  V.  Nase,  1  Ashm.  242;  Woolmer'sEst.,  3  Whart.  879;  Taylor  v.  Lucas, 
4  Hawks,  215;  Pool  v.  Harrison,  18  Ala.  515;  Vick  v.  McDaniel,  3  How. 
(Miss.)  337;  Bryson  v.  Nichols,  2  Hill,  Ch.  113. 

2  Skrymsher  v.  Northcote,  1  Swanst.  566:  McDonald  v.  Bryce,  2  Keen, 
276;  Eyre  v.  Marsden,  2  Keen,  564;  Woolmer's  Est.,  3  Whart.  477:  John- 
son V.  Clarkson,  3  Rich.  Eq.  305;  Salt  v.  Chattaway,  3  Beav.  576;  Floyd 
V.  Barker,  1  Paige,  480;  Frazier  v.  Frazier,  2  Leigh,  642;  Trippe  t;.  Frazicr, 
4  H.  &  J.  446. 

'  In  the  United  States  there  is  considerable  variety  in  the  decisions  of 
the  courts,  if  not  some  uncertainty  in  the  law,  where  it  is  not  determined 
by  statute.  See  a  very  learned  discussion  of  the  law  in  New  York  in  Van 
Kluck  V.  Dutch  Reformed  Church,  6  Paige,  000;  20  Wend.  458.    In  Maeea- 

251 


§  161.]  RESULTING   TRUSTS.  [CHAP.  V. 

§  161.  It  was  formerly  said  that  if  a  man  conveyed  his  estate 
to  a  stranger  without  consideration,  or  for  a  mere  nominal  one, 
a  trust  resulted  to  the  owner,  on  the  ground  that  the  law  would 
not  presume  a  man  to  part  with  his  property  without  some  in- 
ducement thereto.^  This  was  in  strict  analogy  to  the  common 
law,  whereby,  if  a  feoffment  was  made  without  consideration, 
the  legal  title  only  passed  to  the  feoffee,  and  a  use  resulted  to  the 
feoffor.^  In  conformity  with  this  rule,  Mr.  Cruise  lays  it  down, 
that  if  the  legal  estate  in  lands  is  conveyed  to  a  stranger  without 
any  consideration,  there  arises  a  resulting  trust  to  the  orig- 
inal owner;  ^  for  where  there  is  neither  consideration,  nor  dec- 
laration of  use,  to  show  the  intention  of  the  parties,  it  cannot  be 
supposed  that  the  estate  was  intended  to  be  given  away.^  And 
the  burden  was  put  upon  the  grantee  to  show  the  consideration, 
and  upon  failure  of  proof,  a  use  was  presumed  to  the  grantor, 
for  the  reason,  as  stated  by  Sir  Francis  Bacon,  that  when  feoff- 
ments were  made,  it  grew  doubtful  w^hether  estates  were  in  use 
or  purchase;  and  as  purchases  were  things  notorious,  and  uses 
were  things  secret,  the  Chancellor  thought  it  more  convenient 
to  put  the  purchaser  to  prove  his  consideration  than  the  feoffor 
to  prove  his  trust,  and  so  made  intendment  toward  the  use,  and 
put  the  purchaser  to  the  proof  of  his  purchase.^  To  the  same 
effect  are  Coke  on  Littleton  and  many  of  the  older,  and  some 
of  the  more  modern,  authorities.^ 

chusetts,  Hayden  v.  Stoughton,  5  Pick.  528;  Brigham  v.  Shattuck,  10  Pick. 
306;  Clapp  v.  Stoughton,  id.  463;  4  Kent  Com.  541. 

^  Lewin  on  Trusts,  116  (5th  Lond.  ed.),  and  cases  cited;  Tolar  v.  Tolar, 

1  Dev.  Eq.  456;  2  Story,  Eq.  Jur.  §  1199;  Cecil  v.  Butcher,  2  J.  &  W.  573; 
Souerbye  v.  Arden,  1  Johns.  Ch.  246. 

2  Dyer  v.  Dyer,  2  Cox,  92;  Pinney  v.  Fellows,  15  Vt.  538;  Boteford  v. 
Burr,  2  Johns.  Ch.  405. 

5  Cruise,  Dig.  tit.  12,  c.  1,  §  52,  tit.  11,  c.  4,  §  16. 

*  Cruise,  Dig.  tit.  11,  c.  4,  §  16,  et  seq.  *  Bacon  on  Uses,  317. 

«  1  Inst.  23  a,  271  a;  Dyer,  166  a,  186  h;  11  Mod.  182;  Cleve's  Case,  6 
Rep.  176;  Woodliffe  v.  Drury,  Cro.  Eliz.  439;  Duke  of  Norfolk  v.  Brown, 
Pr.  Ch.  80;  Warman  v.  Seaman,  2  Freem.  308;  Hayes  v.  Kingdome,  1  Vem. 
33;  Grey  v.  Grey,  2  Swanst.  598;  Elliot  v.  Elliot,  2  Ch.  Cas.  232;  Att.  Gen. 
V.  Wilson,  1  Cr.  &  Ph.  1;  Sculthorpe  v.  Burgess,  1  Ves.  Jr.  92;  Tyrrell's  Case, 

2  Freem.  304;  Ward  v.  Lant,  Pr.  Ch.  182. 

252 


CUAP.  v.]         VOLUNTARY  CONVEYANCE.  [§  1G2. 

§  162.  But  the  rule  that  a  trust  resulted  to  the  grantor  upon 
a  voluntary  conveyance  was  confined  to  common-law  convey- 
ances or  assurances,  such  as  feoffments,  grants,  fines,  recoveries, 
and  releases  which  operated  without  consideration,  and  vested 
the  estate  in  the  alienee  by  the  act  itself,  as  by  livery  of  seisin;  ^ 
although  it  was  always  doubtful  whether  a  use  could  result 
from  a  conveyance  by  lease  and  release,  even  though  it  was 
voluntary,  and  no  uses  were  declared;  for  the  extinguishment 
of  the  estate  of  the  lessee  was  a  good  consideration,  yet  such  a 
conveyance  was  a  strict  common-law  conveyance.^  This  rule 
does  not  apply  to  modern  conveyances,  and  no  trust  is  now  held 
to  result  to  a  grantor  although  he  conveys  his  estate  without 
consideration.^  (a)    At  the  present  day  almost  all  conveyances 

»  Cruise,  Dig.  tit.  11,  c.  4,  §  16. 

2  Cruise,  Dig.  tit.  32,  c.  11,  §  17. 

3  Hutchins  v.  Lee,  1  Atk.  447;  Lloyd  v.  Spillett,  2  Atk.  150;  Young  v. 
Peachy,  id.  257;  Bum  v.  Winthrop,  1  Johns.  Ch.  329;  Graff  v.  Rohrer, 
35  Md.  327;  Hogan  v.  Jaques,  19  N.  J.  Eq.  123;  Bust  v.  Wilson,  28  Cal. 
632;  Jackson  v.  Cleveland,  15  Mich.  94;  Ownes  v.  Ov^-nes,  23  N.  J.  Eq.  60. 
But  see  McKenney  v.  Bums,  31  Ga.  295,  and  Haigh  v.  Kaye,  L.  R.  7  Ch. 
469;  Blodgett  v.  Hildreth,  103  Mass.  486;  Stevenson  v.  Crapnell,  114  111. 
19.  [Campbell  v.  Noble,  145  Ala.  233;  Brooks  v.  Union  Trust  Co.,  146 
Cal.  134;  Tillaux  v.  Tillaux,  115  Cal.  663;  Lancaster  t'.  Springer,  239  111. 
472;  Monson  v.  Hutchin,  194  111.  431;  Williams  v.  Williams,  180  111.  361; 
Mayficid  v.  Forsyth,  164  111.  32;  Moore  v.  Horsley,  156  111.  36;  Ostenson 
V.  Severson,  126  Iowa,  197;  Willis  v.  Robertson,  121  Iowa,  380,  382;  Luck- 
hart  V.  Luckhart,  120  Iowa,  248;  Gregory  v.  Bowlsby,  115  Iowa,  327;  Craw- 
ley V.  Crafton,  193  Mo.  421;  Weiss  v.  Heitkamp,  127  Mo.  23;  Bobb  v.  Bobb, 
89  Mo.  411;  Aller  v.  Crouter,  64  N.  J.  Eq.  381,  390;  Coffey  v.  Sullivan,  63 
N.  J.  Eq.  296,  303;  Lovett  v.  Taylor,  54  N.  J.  Eq.  311;  Baker  v.  Baker,  72 
A.  1000  (N.  J.  Ch.  1909);  Salisbury  v.  Clarke,  61  Vt.  453.] 

(a)  It     has     occasionally     been  seems  not  to  be  a  resulting  trust, 

stated    that    a   trust    "results"    to  properly    speaking,    but    either    an 

the  grantor  where  the  grantee  stand-  express  trust  which  equity  will  not 

ing  in  a  confidential  relation  has  in-  allow  the  grantee  to  defeat  by  plcad- 

duced  the  transfer  by  a  parol  agree-  ing  the  statute  of  frauds,  or  a  con- 

ment   to  hold   upon   trust   for  the  structive  trust  arising  ex  malcficio. 

grantor  or  to  reconvey.     Myers  v.  It  seems  better  to  deal  with  this 

Jackson,    135   Ind.    136;   Giffen   v.  point  under  constructive  trusts.    See 

Taylor,    139    Ind.    573.      But    the  §  181,  note, 
trust,  if  there  is  one,  in  such  a  case 

253 


§  162.]  RESULTING   TRUSTS.  [CHAP.  V. 

are  in  form  deeds  of  bargain  and  sale,  and  operate  to  pass  the 
estate  by  virtue  of  the  statute  of  uses,  or  of  statutes  in  the 
several  States  prescribing  the  formalities  necessary  to  convey 
lands.  Under  the  statute  of  uses,  the  bargain  between  the  bar- 
gainor and  the  bargainee,  and  the  consideration,  raised  a  use  in 
the  bargainee;  the  statute  immediately  stepped  in  and  vested  the 
legal  title  in  the  same  person  for  whom  a  beneficial  use  had  been 
raised  by  the  bargain.  In  conveyances  that  are  in  form  deeds  of 
bargain  and  sale,  parol  evidence  cannot  be  received  to  control  or 
contradict  the  statement  of  the  consideration.  Such  a  state- 
ment is  a  solemn  and  essential  part  of  the  deed,  and  its  existence 
cannot  be  disproved  by  parol,^  although  it  is  allowed  so  far  to 
control  the  statement  as  to  the  payment  of  it,  as  to  show  that 
it  still  exists  as  a  debt  due  from  the  grantee  to  the  grantor.^  (a) 
And  so  in  States  where  it  is  declared  by  statute,  as  in  Massa- 
chusetts,^ that  deeds  duly  executed,  acknowledged,  and  re- 
corded shall  be  effectual  to  pass  the  estate  without  other  cere- 
mony, it  is  not  competent  to  control  the  effects  of  such  deeds  by 
parol,  or  to  engraft  uses,  trusts,  or  other  limitations  upon  them 
not  contained  in  the  instruments  themselves,  or  in  some  other 
instrument  executed  before  or  at  the  same  time  with  them,  in 

>  Leman  v.  Whitley,  4  Russ.  423;  Philbrook  v.  Delano,  29  Maine,  410; 
Graves  v.  Graves,  29  N.  H.  129;  Randall  v.  Phillips,  3  Mason,  388;  Hutch- 
inson V.  Tindall,  2  Green,  Ch.  357;  Alison  v.  Kurtz,  2  Watts,  187;  Wilkinson 
V.  Wilkinson,  2  Dev.  Eq.  376;  Morris  v.  Morris,  2  Bibb.  311;  Movan  v.  Hayes, 
1  Johns.  Ch.  339;  Rathbun  v.  Rathbun,  6  Barb.  98;  Balbeck  v.  Donaldson, 
6  Am.  Law.  Reg.  148;  Graff  v.  Rohrer,  35  Md.  327.  [McConnell  v.  Gentry, 
99  S.  W.  278  (Ky.  1907.)] 

2  Leman  v.  Whitley,  4  Russ.  423;  Graves  v.  Graves,  29  N.  H.  129;  Phil- 
brook  V.  Delano,  21  Maine,  420;  Randall  v.  PhilUps,  3  Mason,  388;  Thomas 
t;.  McCormack,  9  Dana,  188;  Radsall  v.  Radsall,  9  Wis.  379;  Farrington 
V.  Barr,  36  N.  H.  86. 

'  Gen.  Stat.  c.  89,  §  1.     [R.  L.  (1902),  c.  127,  §  1.] 

(a)  The  consideration  expressed  establish   a  resulting   trust  in  the 

in  a  deed  is  open  to  parol  explan-  grantor.      Bobb   v.    Bobb,   89    Mo. 

ation  for  most  purposes,  but  a  want  411;  Weiss  v.  Heitkamp,  127  Mo. 

of  consideration  cannot  be  shown  23. 
against  the  recital  of  the  deed  to 
254 


CHAP,  v.]  VOLUNTARY   CONVEYANCE.  [§  162. 

such  manner  as  to  become  a  part  of  them.^  To  allow  parol  evi- 
dence to  raise  a  resulting  trust  upon  such  deeds  would  be  to 
break  in  upon  the  express  provisions  of  the  statute  of  frauds. 
Mr.  Hill  states  the  modern  rule  correctly  when  he  says,^  "that 
it  is  the  clear  result  of  the  authorities  that  where  a  person,  a 
stranger  in  blood  to  the  donor,  and  a  fortiori  if  connected  with 
him  in  blood,  is  in  possession  of  an  estate  under  a  voluntary  con- 
veyance duly  executed,  the  mere  fact  of  his  being  a  volunteer 
will  not  of  itself  create  any  presumption  that  he  is  a  trustee  for 
the  grantor;  but  he  will  be  considered  entitled  to  the  enjoyment 
of  the  beneficial  interest  unless  that  title  is  displaced  by  sufficient 
evidence  of  an  intention  on  the  part  of  the  donor  to  create  a 
trust,  and  he  need  not  bring  proofs  to  keep  his  estate,  but  the 
plaintiff  must  bring  proofs  to  take  it  from  him."  ^  And  where 
the  deed  contains  a  clause,  as  most  deeds  do,  that  the  estate  is 
had  and  held  to  the  grantee,  his  heirs  and  assigns,  to  his  and 
their  use  and  behoof,  no  trust  can  result,  as  it  is  a  rule  that  when 
a  use  is  declared,  no  other  use  can  be  shown  to  result.^  (a)  A 
fortiori  a  trust  deed  cannot  be  turned  into  a  resulting  trust  for 
the  grantor  by  proof  that  it  was  without  consideration.^    And 

»  Gerry  v.  Stimson,  60  Maine,  186;  Philbrook  v.  Delano,  29  id.  410; 
Titcomb  v.  Morrill,  10  Allen,  15;  Bartlett  v.  Bartlett,  14  Gray,  278;  Walker 
V.  Locke,  5  Gush.  90;  Blodgett  v.  Hildreth,  103  Mass.  484;  Games  v.  Gol- 
bum,  104  Mass.  274;  Whitton  v.  Whitton,  3  Gush.  191;  Graves  f.  Graves, 
29  N.  H.  129;  Rathbun  v.  Rathbun,  6  Barb.  105;  Bank  of  U.  S.  v.  Housman,  6 
Paige,  526;  Miller  v.  Wilson,  15  Ohio,  108;  Pamell  v.  Kingston,  3  Sm.  &  Gif. 
337;  Taylor  v.  Taylor,  1  Atk.  386;  Dyer  v.  Dyer,  2  Cox,  93;  Fordyce  v.  Wallis, 
3  Bro.  Gh.  576;  Squire  v.Harder,  1  Paige,  494;  Balbeck  v.  Donaldson,  6 
Am.  Law.  Reg.  148;  Jackson  v.  Gamsey,  16  Johns.  189;  Jackson  t;.  Gald- 
well,  1  Gow.  622;  Farrington  v.  Barr,  36  N.  H,  431. 

«  Hill  on  Trustees,  170  (4th  Am.  ed.). 

*  Gook  V.  Fountain,  3  Swanst.  590;  Glavering  v.  Glavering,  2  Vem.  473 
Boughton  V.  Boughton,  1  Atk.  625;  Gecil  v.  Butcher,  2  Jac.  &  W.  573 
Jeffreys  v.  Jeffreys,  1  Gr.  &  Ph.  138;  Dummer  v.  Pitcher,  2  M.  &  K.  262 
Leman  v.  Whitley,  4  Russ.  423;  Graff  v.  Rohrer,  35  Md.  327. 

*  Graves  v.  Graves,  29  N.  H.  129;  Sprague  v.  Woods,  4  Watts  &  S.  192; 
Vandervolgen  v.  Yates,  5  Seld.  219;  Gove  v.  Learoyd,  140  Maes.  524. 

»  Bobb  V.  Bobb,  89  Mo.  419. 

(a)  Lovett  v.  Taylor,  54  N.  J.  Eq.  311. 

255 


S"  164.]  RESULTING   TRUSTS.  [cHAP.  V. 

when  a  deed  contains  covenants  of  warranty,  no  use  can  result 
to  the  grantor,  for  such  covenants  estop  him  from  claiming  any 
legal  or  beneficial  interest  in  the  estate.^ 

§  163.  It  may  be  stated  that  courts  do  not  favor  voluntary 
conveyances,  and  will  not  lend  their  aid  to  enforce  them  if  they 
are  imperfectly  executed,  and  their  decrees  are  necessary  to  give 
them  validity  and  force.  In  such  cases  equity  will  not  interfere, 
but  will  leave  the  parties  to  their  rights  at  law.^  And,  further, 
equity  will  always  look  upon  such  conveyances  with  suspicion, 
especially  if  made  to  strangers  for  no  particular  purpose.  If  any 
fraud  or  misrepresentation  is  practised  upon  a  grantor,  equity 
will  fasten  a  trust  upon  the  conscience  of  the  fraudulent  grantee.* 
If  fraud  upon  the  grantor  is  alleged,  the  fact  that  the  conveyance 
was  without  consideration  is  always  considered  as  pertinent 
evidence,  and  Avill  be  considered  as  one  badge  of  fraud,  if  there 
are  other  facts  and  circumstances  pointing  in  that  direction.'^ 
A  disposition  by  will,  however,  is  not  subject  to  these  rules,  as 
a  gift  by  will  imports  a  consideration,  and  no  averments  by 
parol  can  be  received  to  fasten  a  use  or  trust  upon  such  gift; 
but  the  donee  will  take  both  the  legal  and  beneficial  estate,  un- 
less It  clearly  appears  from  the  whole  will  that  such  was  not  the 
intention  of  the  donor.^ 

§  164,  It  is  further  to  be  observed  that  voluntary  convey- 
ances to  a  wife  or  child  were  never  within  the  rule  that  such  gifts 
raiser  a  resulting  trust  for  the  donor.  In  conveyances  of  this 
kind  tc  the  donor's  family  the  analogy  of  the  common  law 
was  followed,  whereby,  if  a  feoffment  was  made  to  a  stranger 
without  consideration,  a  use  resulted  to  the  feoffor;  but  if  a 
feoffment  was  made  to  a  wife  or  child,  no  use  resulted,  for  the 
consideration  of  blood  was  held  a  good  consideration,  and  an 
advance  or  settlement  was  presumed.  So  marriage  was  not 
only  a  good  but  a  valuable  consideration,  and  no  trusts  could 

1  Philbrook  v.  Delano,  29  Maine,  410. 

'  Lane  v.  Ewing,  31  Mo.  75.    [Supra,  §  95  et  seq.\ 

»  Post,  Chap.  VI.  *  Post,  §  187.  '  Ante,  §  94. 

256 


CHAP,  v.]        VOLUNTARY  CONVEYANCE.  [§  165. 

result  from  conveyances  made  in  consideration  of  marriage, 
either  of  the  grantor  or  of  any  member  of  his  family.  But  if 
voluntary  conveyances  to  wife  or  children  were  made  by  a  man 
deeply  indebted,  or  with  an  intention  to  delay  his  creditors, 
while  he  could  not  raise  a  trust  in  his  own  favor,  yet  his  credi- 
tors could  avoid  the  conveyances  or  raise  a  trust  upon  them 
in  their  own  favor  to  the  extent  of  their  claims.^ 

§  165.  If  the  voluntary  conveyance  is  made  for  some  illegal 
or  fraudulent  purpose,  whether  it  is  a  common-law  or  a  modern 
conveyance,  no  trust  will  result  to  the  grantor;  as,  if  the  vol- 
untary conveyance  is  made  to  delay,  hinder,  and  defeat  cred- 
itors,^ or  to  give  a  man  a  colorable  qualification  to  vote,  or  to 
sit  in  parliament,^  or  to  kill  game,^  or  to  disqualify  the  grantor 
for  an  office,^  or  to  commit  any  other  fraud,^  for  the  reason  that 
the  rules  of  law  cannot  be  used,  controlled,  or  avoided  by  par- 
ties with  a  fraudulent  intent  to  do  that  indirectly  which  they 
cannot  do  directly.^  (a) 

'  Dunnica  v.  Coy,  28  Mo.  525;  Spirett  v.  Willows,  3  De  G.,  J.  &  S.  293; 
Robinson  v.  Robinson,  17  Ohio,  St.  430;  Baldwin  v.  Campfield,  4  Halst.  Ch. 
891;  Spicer  v.  Ayers,  2  N.  Y.  Sup.  Ct.  626.    [Supra,  §  149.] 

2  Cottington  v.  Fletcher,  2  Atk.  156;  Chaplin  v.  Chaplin,  3  P.  Wms.  233; 
Muckleston  v.  Brown,  6  Ves.  68;  Stewart  v.  Iglehart,  7  Gill  &  J.  132; 
Bryant  v.  Mansfield,  22  Maine,310;  Randall  r. Philips, 3  Mason,  378;  Wilson 
V.  Cheshire,  1  McCord,  233;  Mason  v.  Baker,  1  A.  K.  Marsh.  208;  Charaber- 
laync  v.  Temple,  2  Rand.  384;  Stewart  v.  Dailey,  6  Litt.  212;  Jackson  v. 
Button,  3  Har.  98;  McClure  v.  Purcel,  3  A.  K.  Marsh.  61;  Steele  i'.  Worth- 
ington,  2  Ham.  82.    [See  Ownes  v.  Ownes,  23  N.  J.  Eq.  60.] 

3  Pitt's  Case,  cited  Amb.  266;  Curtis  v.  Perry,  6  Ves.  747 ;  Cutler  v.  Tuttle, 
19  N.  J.  Ch.  553,  562. 

*  Roberts  ti.  Roberts,  Daniel,  143;  Brackenbury  v.  Brackenbury,  2  Jac. 
&  W.  391;  Cecil  v.  Butcher,  id.  565. 

5  Birch  V.  Blagrave,  Amb.  264;  Gaskell  v.  Gaskell,  2  Y.  &  J.  502;  Van- 
dcnberg  v.  Palmer,  4  K.  &  J.  204;  Childers  t;.  Childers,  1  De  G.,  &  J.  482 
Field  V.  Lonsdale,  13  Beav.  78;  Doe  v.  Rutledge,  Cowp.  705. 

"  Tipton  V.  Powell,  2  Cold.  19;  Haigh  v.  Kaye,  L.  R.  7  Ch.  473 
Ownes  V.  Ownes,  23  N.  J.  Eq.  60;   Miller  v.  Davis,  50  Mo.  572. 

^  Scobie  V.  Blanchard,  3  N.  U.  170;  Pritchard  v.  Brown,  4  N.  H.  401 
Hutchms  V.  Heywood,  50  N.  H.  488;  Sugd.  V.  &  P.  416. 

(a)  But  in  Monahan  v.  Monahan,  resulted  where  a  father  took  secur- 
77  Vt.  133,  it  was  held  that  a  trust     ities  in  the  name  of  the  son  and  in 

VOL.  I.  —  17  257 


§  lC5a. 


RESULTING   TRUSTS. 


[chap.  V. 


§  165  a.  A  resulting  trust  is  to  be  performed  or  executed  by 
the  trustee  by  transferring  the  title  to  the  cestui  que  trust  at  his 
request;  ^  but  if  the  trustee  has  incurred  any  expenses  upon  the 
estate  by  paying  taxes  or  making  improvements,  or  advancing 
part  of  the  purchase-money,  he  will  be  allowed  to  hold  the  estate 
until  his  advances  are  repaid.^ 

»  Millard  v.  Hathaway,  27  Cal.  119. 
«  Malroy  v.  Sloans,  44  Vt.  311. 


order  to  rebut  the  presumption  of 
gift  alleged  the  fraudulent  purpose 
of  escaping  taxation.  For  a  criti- 
cism of  this  case  see  18  Harvard 
Law  Rev.  547.  In  Derry  v.  Fielder, 
216  Mo.  177,  the  court  declined  to 
declare  a  resulting  trust  where  a 
purchaser  in  the  name  of  his  grand- 
child, in  order  to  rebut  the  presump- 


tion of  gift,  set  up  that  the  purpose 
of  taking  title  in  this  was  to  prevent 
his  wife  from  acquiring  dower  rights. 
Most  courts,  however,  would  not 
consider  this  purpose  fraudulent 
per  se.  Seaman  v.  Harmon,  192 
Mass.  5;  Phelps  v.  Phelps,  143  N.  Y. 
197;  Nichols  v.  Park,  79  N.  Y.  S. 
547,  78  App.  Div.  95. 


258 


CllAP.  VI.]  CONSTRUCTIVE    TRUSTS.  (§  16(J. 


CHAPTER  VI. 

CONSTRUCTIVE  TRUSTS. 

$  166.    General  nature  of  confltructive  tniBts.     They  arise  from  fraud. 

§  167.  Jurisdiction  of  equity  over  them,  and  the  relief  given  by  convert- 
ing the  offending  party  into  a  trustee. 

§  168.     Classification  of  constructive  trusts. 

§  169.     General  definition  of  a  fraud  in  equity. 

§  170.     Principles  upon  which  equity  gives  reUef  against  fraud. 

§  171.     Actual  fraud,  or  suggestio  falsi. 

§  172.  Illustrations  of  actual  fraud. 

5  173*  The  misrepresentations  and  frauds  that  equity  will  relieve 

against. 

§  174.  The  misrepresentation  must  be  of  facts  material  to  the 

contract. 

§  175.  The  misrepresentation  must  be  of  something  peculiarly 

within  the  party's  knowledge. 

§  176.  The  relief  will  depend  upon  the  form  in  which  it  is  sought. 

§  177.     Fraud  that  arises  from  concealment,  or  suppressio  veri. 

§  178.  This  kind  of  fraud  depends  much  upon  the  relation  of  the 

parties. 

§  179.  When  a  person  may  not  be  silent. 

§  180.  Suppressio  veri  is  generally  in  law  an  aflBrmative  act. 

§  181.  Courts  will  relieve  where  acts  are  fraudulently  prevented  from 
being  done  —  illustrations. 

§  182.  Trust  established  where  a  party  fraudulently  prevents  a  will 

from  being  made  in  another's  favor. 

§  183.     Trust  established  in  odium  spoliaioris. 

§  184.     Trust  established  upon  a  conveyance  made  in  ignoranceor  mistake. 

§  185.  But  if  the  conveyance  is  a  compromise,  courts  will  support  it  if 
possible. 

§  186.  Trust  established  when  a  deed  by  mistake  contains  more  land  than 
was  intended. 

§  187.  Misrepresentation  of  the  value  of  property  and  inadequacy  of 
consideration. 

§  188.     Catching  bargains  with  young  heirs  and  reversioners. 

§  189.     Trust  arising  from  mental  incapacity  or  imbecility  of  parties. 

§  190.  Mental  weakness  —  old  age. 

§  191.  Drunkenness. 

§  192.  Duress  —  oppression  and  distress. 

§  193.  Where  several  of  these  circumstances  are  found  combined. 

§  194.  Frauds  that  arise  by  construction  from  the  fiduciary  relations  of 
parties. 

259 


§  166.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

§  195.  Between  trustee  and  cestui  que  trust. 

§  196.  Renewal  of  leases  in  his  own  name  by  trustee. 

§§  197,  198.         Contracts  prohibited  between  trustee  and  cestui  que  tru»t, 
but  the  cestui  que  trust  alone  can  avoid  them. 

§  199.  Rule  does  not  apply  to  dry  trustees. 

§  200.  Guardians  and  wards. 

§  201.  Parents  and  children. 

§§  202,  203.     Attorney  and  cUent. 

§  204.  Rule  applies  to  all  confidential  advisers. 

§  205.     Administrators  and  executors. 

§  206.     Principal  and  agent. 

§  207.  Directors  of  corporations. 

§  208.  Trusts  that  arise  out  of  inducements  held  out  for  marriage. 

§  209.     Other  fiduciary  relations. 

§  210.  Undefined  fiduciary  and  friendly  relations. 

§  211.     Trusts  arising  from  the  frauds  of  third  persons. 

§  212.  Frauds  upon  third  persons  as  creditors,  etc. 

§  213.  Conveyances  by  man  or  woman  on  the  point  of  marriage. 

§  214.  Illegal  and  immoral  contracts. 

§  215.  Fraud  by  pretending  to  buy  for  another. 

§  216.     Devises  or  conveyances  upon  secret  illegal  trusts. 

§  217.     Purchases  from  trustees  with  knowledge  of  the  trusts. 

§  218.  Purchases  without  notice  of  the  trust. 

§  219.  The  safeguards  thrown  around  such  purchases. 

§  220.  The  consideration  in  such  cases. 

§  221.  The  consideration  must  have  been  actually  paid. 

§  222.  Notice  of  the  trust  —  to  whom  it  may  be. 

§  223.  Notice  may  be  actual  or  constructive. 

§  224.  Purchase  of  property  from  executors  or  administrators  — 

real  estate. 

§  225.  Personal  property. 

§  226.    Constructive  trusts  may  be  proved  by  parol  —  statute  of  frauds 
does  not  apply. 

§  227.     The  right  to  set  aside  a  conveyance  for  fraud  is  an  equitable  estate 

that  may  be  conveyed  and  devised. 
§§  228-230.    Statute  of  frauds  and  the  time  within  which  steps  must  be 
taken  to  avoid  a  fraudulent  conveyance. 

§  166.  The  trusts  thus  far  considered  arise  from  the  express 
agreements  and  intentions  of  the  parties,  or  from  their  inten- 
tions implied  from  their  agreements,  or  result  from  their  express 
or  implied  agreements.  These  trusts  arise,  result,  or  are  implied 
from  the  contracts  and  relations  of  the  parties.  The  intention 
of  the  parties  as  manifested  in  contracts  made  in  good  faith  is 
the  foundation  of  them.  There  is  another  large  class  of  trusts 
260 


CHAP.  VI.]  CONSTRUCTIVE   TRUSTS.  [§   166. 

which  arise  from  frauds  committed  by  one  party  upon  another. 
Thus,  if  one  party  procures  the  legal  title  to  property  from  an- 
other by  fraud  or  misrepresentation  or  concealment,  or  if  a  party 
makes  use  of  some  influential  or  confidential  relation  which  he 
holds  towards  the  owner  of  the  legal  title,  to  obtain  such  legal 
title  from  him  upon  more  advantageous  terms  than  he  could 
otherwise  have  obtained  it,  equity  will  convert  such  party  thus 
obtaining  property  into  a  trustee.  If  a  person  obtains  the  legal 
title  to  property  by  such  arts  or  acts  or  circumstances  of  cir- 
cumvention, imposition,  or  fraud,  or  if  he  obtains  it  by  virtue  of 
a  confidential  relation  and  influence  under  such  circumstances 
that  he  ought  not,  according  to  the  rules  of  equity  and  good  con- 
science as  administered  in  chancery,  to  hold  and  enjoy  the  bene- 
ficial interest  of  the  property,  courts  of  equity,  in  order  to  ad- 
minister complete  justice  between  the  parties,  will  raise  a  trust 
by  construction  out  of  such  circumstances  or  relations;  and  this 
trust  they  will  fasten  upon  the  conscience  of  the  offending  party 
and  will  convert  him  into  a  trustee  of  the  legal  title,  and  order 
him  to  hold  it  or  to  execute  the  trust  in  such  manner  as  to  protect 
the  rights  of  the  defrauded  party  and  promote  the  safety  and 
interests  of  society.^  Such  trusts  are  called  constructive  trusts. 
They  differ  from  other  trusts  in  that  they  are  not  within  the 
intention  or  contemplation  of  the  parties  at  the  time  the  con- 
tract is  made  from  which  they  are  construed  by  the  court,  but 
they  are  thrust  upon  a  party  contrary  to  his  intention  and 
against  his  consent.  The  reason  is  that  courts  of  equity  have 
a  large  jurisdiction  over  all  matters  of  trust  and  confidence. 
They  control  and  direct  their  administration,  and  in  certain 
cases  they  annul  and  put  an  end  to  them  by  directing  the  trus- 
tee to  convey  the  trust  property  to  the  person  beneficially  inter- 
ested. They  can  also  remove  the  trustees  and  appoint  new 
ones.    Therefore,  courts  of  equity  by  raising  a  trust  by  construc- 

•  Thompson  v.  Thompson,  16  Wis.  91;  McLane  v.  Johnson,  43  Vt.  48; 
Pillow  V.  Brown,  26  Ark.  240;  Collins  v.  Collins,  6  Lans.  368;  HoUingshed 
V.  Simras,  51  Cal.  158;  Hendrixr.  Nunn,  46  Tex.  141;  Kaysert'.  Maugham,  8 
Col.  232;  Johnson  v.  Giles,  69  Ga.  652. 

261 


§  166.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

tion  in  cases  of  fraud  can  do  equal  and  complete  justice  between 
the  parties.  By  this  fiction  of  a  constructive  trust  courts  of 
equity  have  great  powers.  They  can  order  the  constructive 
trustee  to  hold  the  legal  title  for  the  original  owner  upon  just 
and  proper  terms.  If  he  has  paid  any  value  for  the  legal  estate, 
they  can  order  the  estate  to  stand  as  security  for  it;  they  can 
order  accounts  to  be  taken  and  settled;  ^  they  can  decree  a  re- 
conveyance of  the  property,  or  they  can  put  an  end  to  the  trust 
by  declaring  the  conveyances  to  the  constructive  trustee  to  be 
null  and  void,  and  order  that  they  be  surrendered  up  and  can- 
celled. In  all  such  cases  the  relief  is  really  founded  on  fraud  and 
not  on  constructive  trust.  When  it  is  said  that  the  person  who 
fraudulently  receives  or  possesses  himself  of  trust  property,  or 
who  has  defrauded  another  of  his  estate  by  misrepresentation, 
concealment,  or  other  fraudulent  practices,  is  converted  by  the 
court  into  a  trustee  and  ordered  to  account  for  or  reconvey  the 
property,  the  expression  is  used  for  the  purpose  of  describing  the 
nature  and  extent  of  the  remedy  against  him,  and  it  denotes  that 
the  parties  defrauded  or  beneficially  entitled  have  the  same 
rights  and  remedies  against  him  as  they  would  be  entitled  to 
against  an  express  trustee  who  had  fraudulently  committed  a 
breach  of  the  trust.  Generally  speaking,  the  constructive  trusts  de- 
described  in  this  chapter  are  not  trusts  at  all  in  the  strict  and 
proper  signification  of  the  word  "trusts;  "  but  as  courts  are 
agreed  in  administering  the  same  remedy  in  a  certain  class  of 
frauds  as  are  administered  in  fraudulent  breaches  of  trusts,  and 
as  courts  and  the  profession  have  concurred  in  calling  such  frauds 
constructive  trusts,  there  can  be  no  misapprehension  in  con- 
tinuing the  same  phraseology,  while  a  change  might  lead  to  con- 
fusion and  misunderstanding.^  (a) 

'  Tompson  v.  Thompson,  16  Wis.  91;  McLane  v.  Johnson,  43  Vt.  48; 
Collins  V.  Collins,  6  Lans.  (N.  Y.)  368. 

*  See  Westbury,  Lord  Chancellor,  in  Rolfe  v.  Gregory,  4  De  G.,  J.  &  S. 
679. 

(a)  A  constructive  trust  arising  own  name  with  another's  funds  "  is 
from  a  wrongful  purchase  in  one's     not  merely  a  right  or  cause  of  action 

262 


CHAP.  VI.]  CONSTRUCTIVE    TRUSTS.  [§  167. 

§  167.  Courts  of  common  law  have  an  extensive  jurisdiction 
in  cases  of  fraud,  but  it  is  readily  seen  that  the  remedy  in  equity 
is  more  easily  moulded  to  the  varying  circumstances  of  different 
cases.  As  between  the  immediate  parties,  fraud  makes  all 
things  void  which  are  done  under  its  direct  influence.  Thus, 
rwn  est  factum  can  be  pleaded  to  a  suit  upon  a  deed  or  bond, 
procured  by  fraud  or  duress,  on  the  ground  that  whatever  is 
done  under  the  influence  of  fraud  is  not  done  at  all.*    The  same 

»  1  Chitty,  Plead.  483.  Courts  of  chancery  in  England  and  the  courts 
of  the  United  States,  and  of  many  of  the  several  States,  have  a  jurisdic- 
tion in  equity  to  set  aside  deeds  and  contracts  procured  by  misrepresenta- 
tion, concealment,  collusion,  or  fraud.  In  Massachusetts,  the  Supreme 
Judicial  Court  has  jurisdiction  in  equity  in  cases  of  fraud,  accident,  and 
mistake,  according  to  the  usage  and  practice  of  courts  of  equity  where 
there  is  not  a  plain,  adequate,  and  complete  remedy  at  law.  Gen.  Stat, 
ch.  113,  §  2.  It  was  supposed  by  the  profession  that  this  statute  conferred 
upon  the  court  a  jurisdiction  in  equity  in  accordance  with  the  general  usages 
of  the  courts  of  equity  in  England  and  the  United  States.  But  the  court  by 
a  strict  construction  of  the  words,  "where  there  is  not  a  plain,  adequate 
and  complete  remedy  at  law,"  denied  their  jurisdiction  in  cases  of  fraud, 
where  an  action  at  law  might  be  maintained  by  the  injured  party.  Thus, 
if  a  deed  is  procured  from  a  person  by  fraud,  he  cannot  maintain  a  suit 

personal  to  the  beneficiary,  author-  in  one  aspect  shows  an  express 
izing  him  to  sue  for,  and  thereby  trust  arising  from  the  contract,  in 
acquire  an  estate  in  the  land,  but,  another  a  purely  resulting  trust, 
like  a  resulting  trust  proper,  or  the  and  in  another  the  use  of  the  assets 
equity  of  redemption  of  a  mortga-  of  a  cestui  que  trust  by  a  trustee  in 
gor,  after  forfeiture,  it  is,  in  and  of  payment  of  property  to  which  he 
itself,  an  equitable  estate,  vendible  took  title  in  his  own  name,  although 
and  descendible  as  any  other  in-  the  rights  of  the  party  whose  money 
terest  in  lands,  and  capable  of  being  was  used  are  not  subject  in  all  re- 
executed  into  a  legal  estate  by  the  spects  to  the  same  principles  of  law. 
decree  of  a  court  of  equity,  at  the  Kelly  f.  Browning,  113  Ala.  420,  444. 
suit  of  the  beneficiary,  or  any  one  As  to  the  distinction  between 
in  privity  with  him,  in  blood  or  constructive  and  resulting  tnistt-^ 
estate."  Sanford  v.  Hamner,  115  see  Barger  i'.  Barger,  30  Or.  268; 
Ala.  406,  416.  Farmers'  and  Traders'  Bank  v. 
\\'Tien  the  object  of  a  bill  in  Kimball  MiUing  Co.,  1  S.  D.  388, 
equity  is  single,  the  subject-matter  393;  Moultrie  v.  Wright,  154  Cal. 
the  same,  and  the  appropriate  pray-  520;  Fulton  v.  Jansen,  99  Cal.  591; 
ers  for  relief  not  inconsistent,  a  bill  §  127,  note  b,  p.  191. 
is  not  necessarily  multifarious,  which 

263 


§  167.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

evidence  is  admissible  in  both  courts.  Probably  the  same  evi- 
dence that  would  convince  a  court  of  equity  that  a  deed  was 
procured  by  fraud,  and  that  the  grantee  ought  to  hold  as  a  con- 
structive trustee  for  the  grantor,  would  also  persuade  a  jury  to 
return  a  verdict  against  such  deed.  In  some  States  the  parties 
have  a  right  to  trial  by  jury  of  all  questions  of  fact,  as  of  fraud 
or  no  fraud,  arising  upon  the  pleadings  in  equity.  In  other  States 
the  court  may  in  its  discretion  send  such  issues  of  fact  to  trial  by 
a  jury.^  Thus,  the  remedy  in  equity  in  cases  of  fraud  is  sought, 
not  so  much  from  the  mode  of  proof  and  the  rules  of  evidence,  as 
it  is  from  the  complete  character  of  the  relief  given.  It  is 
true,  that  in  some  cases  courts  of  equity  will  act  upon  circum- 
stances and  presumptions  of  fraud  which  courts  of  law  would 
not  deem  satisfactory  proofs.^  As  if  a  guardian  purchases  an 
estate  from  a  ward,  equity  will  presume  fraud  from  the  exist- 
in  eqiiity  to  set  it  aside,  if  it  is  possible  to  maintain  a  real  action  for  the 
recovery  of  the  land ;  and  as  such  deeds  are  void  or  at  least  voidable,  such 
action  may  be  maintained  at  law,  and  the  court  has  no  jurisdiction  in  equity. 
Bassett  v.  Brown,  10  Mass.  355.  This  decision  goes  upon  the  strict  meaning 
of  the  words,  "  where  there  is  not  a  plain,  adequate,  and  complete  remedy 
at  law,"  words  which  were  formerly  found  in  every  bill  in  equity,  in  order 
to  give  the  court  jurisdiction.  But  they  did  not  exclude  the  jurisdiction  in 
equity,  if  the  court  had  a  jurisdiction,  concurrent  or  otherwise,  according 
to  the  usage  and  practice  of  courts  of  equity.  The  court  in  Massachusetts 
still  has  jurisdiction  in  equity  in  cases  of  fraud,  where  there  is  a  peculiar 
complication  of  circumstances  or  of  parties.  Pratt  v.  Pond,  5  Allen,  59; 
Glass  V.  Hulbert,  102  Mass.  26;  Martin  v.  Graves,  5  Allen,  601 ;  WTiittemore 
V.  Cowell,  7  Allen,  446;  Pool  ;;.  Lloyd,  5  Met.  528.  But  the  practitioner 
must  determine  at  his  peril  whether  a  particular  case  comes  vinthin  such 
jurisdiction.  It  would  have  been  more  simple  and  certain  for  the  adminis- 
tration of  justice,  to  have  given  to  the  words  of  exclusion  the  meaning 
attached  to  them  in  bills  of  equity,  and  to  have  made  the  jurisdiction  of 
the  court  to  depend  upon  the  known  usage  and  practice  of  courts  of  equity. 
Thus,  both  the  court  and  the  bar  would  have  had  some  known  ground  to  go 
upon.  Of  course  these  remarks  apply  only  to  those  cases  of  fraud  where 
there  is  a  jurisdiction  in  equity  to  set  aside  conveyances  procured  by  fraud, 
and  for  other  relief  according  to  the  knowTi  usage  and  practice  of  courts  of 
equity,  and  not  to  mere  cases  of  cheating  and  fraud  in  many  of  the  affairs  of 
life.    See  Miller  v.  Scammon,  52  N.  H.  609. 

1  1  Story's  Eq.  Jur.  §  190  a. 

«  Warner  v.  Daniels,  1  Wood.  &  M.  103;  Denton  v.  McKenzie,  1  Des. 
289. 

264 


CHAP.  VI.]  CONSTRUCTIVE    TRUSTS.  [§  168, 

ence  of  the  relation  of  guardian  and  ward,  —  a  rule  that  courts 
of  law  would  not  always  act  upon.  Lord  Eldon  said,  that  courts 
of  equity  in  many  cases  would  order  an  instrument  to  be  deliv- 
ered up  as  unduly  obtained,  which  a  jury  would  not  be  justified 
in  impeaching  by  the  rules  of  law.^  However,  fraud  must  be 
proved  in  both  courts,  and  is  not  to  be  imputed  from  mere  circum- 
stances of  suspicion.  It  is  not,  however,  the  rule  that  the  court  will 
not  presume  or  construe  a  trust  to  arise  except  in  cases  of  abso- 
lute necessity; "  for  courts  of  equity  will  act  upon  the  just  pre- 
ponderance of  all  the  facts  and  circumstances  of  proof  in  the  case.^ 

§  168.  Constructive  trusts  may  be  divided  into  three  classes, 
to  be  determined  according  to  the  circumstances  under  which 
they  arise.  First,  trusts  that  arise  from  actual  fraud  practised 
by  one  man  upon  another.  Second,  trusts  that  arise  from  con- 
structive fraud.^  In  this  second  class  the  conduct  may  not  be 
actually  tainted  with  moral  fraud  or  evil  intention,  but  it  may 
be  contrary  to  some  rule  established  by  public  policy  for  the 
protection  of  society.  Thus,  a  purchase  made  by  a  guardian 
of  his  ward,  or  by  a  trustee  of  his  cestui  que  trust,  or  by  an  attor- 
ney of  his  client,  may  be  in  good  faith,  and  as  beneficial  to  all 
parties  as  any  other  transaction  in  life;  and  yet  the  inconven- 
ience and  danger  of  allowing  contracts  to  be  entered  into  by 
parties  holding  such  relations  to  each  other  are  so  great  that 
courts  of  equity  construe  such  contracts  prima  facie  to  be  fraud- 
ulent, and  they  construe  a  trust  to  arise  from  them.  Third, 
trusts  that  arise  from  some  equitable  principle  independent  of 
the  existence  of  any  fraud;  as  where  an  estate  has  been  pur- 
chased, and  the  consideration-money  paid,  but  the  deed  is  not 
taken,  equity  will  raise  a  trust  by  construction  for  the  pur- 
chaser, (a) 

»  Fullager  v.  Clark,  18  Ves.  483;  Chesterfield  r.  Janesen,  2  Vee.  155. 

'  Cook  V.  Fountain,  3  Swanst.  555. 

»  2  Story's  Eq.  Jur.  §  1195;  Steele  v.  Kinkle,  3  Ala.  352. 

*  Post,  §  194. 

(o)  Scadden  Flat  Gold  Mining  v.  Meeker,  71  Neb.  732;  Marvin  v. 
Co.  «^.  Scadden,  121  Cal.  33;  Cutler     Beraheimer,    77    N.    Y.    S.    915; 

265 


§   169.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

§  169.  No  certain  and  accurate  definition  or  description  of 
actual  fraud  can  be  given.  Courts  have  never  laid  down,  in  a 
general  proposition,  what  does  and  what  does  not  constitute 
fraud,  norany  general  rule  by  which  they  are  controlled  in  giving 
relief,^  lest  other  means  of  committing  fraud  should  be  resorted 
to.  As  Lord  Hardwicke  said,  "  fraud  is  infinite,  and  were  courts 
of  equity  once  to  lay  down  rules  how  far  they  would  go  and  no 
ftirther,  in  extending  the  relief  against  it,  or  to  define  strictly 
the  species  or  evidence  of  it,  the  jurisdiction  would  be  cramped, 
and  perpetually  eluded  by  new  schemes,  which  the  fertility  of 
man's  invention  would  contrive."  ^  Although  it  is  difficult  to 
give  a  definition  of  it,  yet  Mr.  Story  said,^  that  "fraud  in  the 
sense  of  a  court  of  equity  properly  includes  all  acts,  omissions,  and 
concealments  which  involve  a  breach  of  legal  or  equitable  duty, 
trust,  or  confidence,  justly  reposed,  and  are  injurious  to  another, 
or  by  which  an  undue  and  unconscientious  advantage  is  taken  of 
another.'*  And  courts  of  equity  will  not  only  interfere,  in  cases 
of  fraud,  to  set  aside  acts  done,  but  they  will  also,  if  acts  have 
by  fraud  been  prevented  from  being  done  by  the  parties,  inter- 
fere and  treat  the  case  exactly  as  if  the  acts  had  been  done.^  (a) 

'  Mortlock  V.  BuUer,  10  Ves.  306. 

*  Parke's  Hist,  of  Chan.  508;  Lawley  v.  Hooper,  3  Atk.  279;  1  Domat, 
Civil  Law,  B.  1,  tit.  18,  §  3,  art.  1. 

'  1  Story's  Eq.  Jur.  §  187. 

*  Chesterfield  v.  Janssen,  2  Ves.  Sr.  155;  Gale  v.  Gale,  19  Barb.  251;  1 
Fonb.  Eq.  B.  1.  c.  2,  §  3,  note  (r). 

»  Middleton  v.  Middleton,  1  Jac.  «fe  W.  96;  Waltham's  Case,  cited  11 
Ves.  638,  14  Ves.  290;  Devenish  v.  Baines,  Pr.  Ch.  4. 

Wittingham  v.  Lighthipe,  46  N.  J.  deriving  title  under  it  will  be  con- 
Eq.  429.  verted  into  a  trustee  in  case  that 
(a)  In  Huxley  v.  Rice,  40  Mich,  construction  is  needful  for  the  pur- 
73,  82,  approved  in  Moore  v.  Craw-  pose  of  administering  adequate  re- 
ford,  130  U.  S.  122,  128,  the  court  lief;  and  the  setting  up  of  the  statute 
said:  "It  is  the  settled  doctrine  of  of  frauds  by  a  party  guilty  of  the 
the  court  that  where  the  conveyance  fraud  or  misconduct,  in  order  to  bar 
is  obtained  for  ends  which  it  re-  the  court  from  effective  interference 
gards  as  fraudulent,  or  under  cir-  with  his  wrongdoing,  will  not  hin- 
cumstances  it  considers  as  fraudu-  der  it  from  forcing  on  his  conscience 
lent  or  oppressive,  by  intent  or  this  character  as  a  means  to  baffle 
immediate  consequence,  the  party  his  injustice  or  its  effects." 
266 


CHAP.  VI.]  CONSTRUCTIVE   TRUSTS.  '  [§  170. 

§  170.  Although  courts  of  equity  have  not  made  general 
definitions  stating  what  is  fraud  and  what  is  not,  they  have  not 
hesitated  to  lay  down  broad  and  comprehensive  principles  of 
remedial  justice,  and  to  apply  these  principles  in  favor  of 
innocent  parties  suffering  from  the  fraud  of  others.  These 
principles,  though  firm  and  inflexible,  are  yet  so  plastic,  that 
they  can  be  applied  to  every  case  of  fraud  as  it  occurs,  how- 
ever new  it  may  be  in  its  circumstances.  The  leading  principle 
of  this  remedial  justice  is  by  way  of  equitable  construction  to 
convert  the  fraudulent  holder  of  property  into  a  trustee,  and  to 
preserve  the  property  itself  as  a  fund  for  the  purpose  of  recom- 
pense. In  investigating  allegations  of  fraud,  courts  of  equity 
disregard  mere  technicalities  and  artificial  rules,  and  look  only 
at  the  general  characteristics  of  the  case,  and  go  at  once  to  its 
essential  morality  and  merit.  Thus  at  law  married  women  or 
infants  are  not  liable  upon  their  contracts,  nor  are  they  bound 
by  their  deeds,  receipts,  or  releases,  whether  made  bona  fide  or 
fraudulently;  ^  but  in  equity  if  a  married  woman  has  obtained 
property  by  fraud,  the  court  disregards  the  technical  rules 
of  common  law  in  regard  to  married  women,  and  converts  her 
by  construction  into  a  trustee,  and  compels  her  to  do  justice  by 
executing  the  trust.-  The  same  principles  apply  to  infants,  al- 
though they  cannot  be  sued  at  common  law,  save  in  a  few  ex- 
ceptionable cases.  So  if  an  infant  fraudulently  misrepresents 
his  age  and  gives  deeds  or  releases,  upon  which  others  act, 
equity  will  not  allow  him  to  impeach  such  deeds  on  account  of 
his  minority.^  (a)    This  is  on  the  ground  that  infants  and  mar- 

»  People  V.  Kendall,  25  Wend.  399;  Burley  v.  Russell,  10  N.  H.  184; 
West  V.  Moore,  14  Vt.  447;  Conroe  v.  Birdsall,  1  Johns.  Cas.  127;  Price  v. 
Hewitt,  8  Exch.  145. 

*  Vaughan  v.  Vanderslegen,  2  Dr.  363;  Jones  i-.  Kearney,  1  Dr.  &  W. 
167. 

»  Stoolfooe  V.  Jenkins,  12  S.  &  R.  399;  Weight  v.  Snow,  2  De  G.  &  S. 
321. 

(a)  The  courts  of  different  jurisdictions  have  not  agreed  upon  this 
point.     See  infra,  §  624,  note. 

267 


§  171.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

ried  women  shall  not  take  advantage  of  the  rules  made  for  their 
protection  to  perpetrate  frauds  upon  innocent  persons,  but  that 
they  shall  be  bound  by  their  own  fraudulent  representations, 
or  by  equitable  estoppels,  like  other  persons.^ 

§  171.  Fraud,  arising  from  facts  and  circumstances  of  im- 
position, presents  the  plainest  case  for  relief,^  for  it  comes  within 
what  is  called  the  suggestio  falsi?  Wherever  by  misrepresenta- 
tion, combination,  conspiracy,  oppression,  intimidation,  sur- 
prise, or  any  other  practice  at  variance  with  honest,  fair  dealing, 
one  is  deceived,  entrapped,  or  surprised  into  a  conveyance  of  the 
legal  title  to  his  property,  by  deed  or  by  will,  courts  of  equity  will 
not  allow  the  fraudulent  grantee  to  avail  himself  of  the  transac- 
tion to  enjoy  the  beneficial  interest,  but  will  construe  him  to  be  a 
trustee,  and  will  order  him  to  account  upon  equitable  principles, 
and  to  make  a  reconveyance  of  the  property.^  Thus,  where  one 
buys  land  at  an  execution  sale,  or  sale  under  a  trust  deed,  under 
an  agreement  with  the  debtor  that  the  latter  may  redeem,  the 

1  Davis  V.  Fingle,  8  B.  Monr.  539;  Wright  v.  Arnold,  4  id.  643;  Hall  v. 
Timmons,  2  Rich.  Eq.  120. 

*  Chesterfield  v.  Janssen,  2  Ves.  155;  Beegle  v.  Wentz,  55  Penn.  St.  369, 
^  Evans  v.  Bicknell,  6  Ves.  173;  Jarvis  v.  Duke,  1  Vern.  20;  Broderick 

V.  Broderick,  1  P.  Wms.  240;  Nevitt  v.  Gibson,  1  Freem.  Ch.  438;  Bulkley 
t;.  Wilford,  2  CI.  &  Fin.  102. 

*  Tyler  v.  Black,  13  How.  231;  Boyce  v.  Grundy,  2  Pet.  210;  Smith  v. 
Richards,  13  Pet.  26;  McAllister  v.  Barry,  2  Hayw.  290;  Walker  v.  Dunlop,  5 
Hayw.  271;  Harris  v.  Williamson,  4  id.  124;  Stephenson  v.  Taylor,  1  A.  K. 
Marsh.  235;  Pitts  v.  Cottingham,  9  Porter,  675 ;  Lewis  v.  McLemore,  10  Yerg. 
206;  Spence  v.  Duren,  2  Ala.  251 ;  Harris  v.  Carter,  3  Stew.  233;  How  v.  Wel- 
don,  2  Ves.  517;  Neville  v.  Wilkinson,  1  Bro.  Ch.  596;  Earl  of  Bath's  Case, 
3  Ch.  Ca.  56;  Willan  v.  Willan,  16  Ves.  82;  Say  v.  Barwich,  1  V.  &  B.  195; 
Barnsley  v.  Powell,  1  Ves.  289;  Mathew  v.  Hanbury,  2  Vern.  187;  Bridgman 
V.  Green,  2  Ves.  627;  Evans  v.  Llewellyn,  1  Cox,  340;  Bennet  v.  Vade,  2  Atk. 
324;  Mad.  Ch.  Pr.  342;  Clermont  v.  Tasburgh,  1  J.  &  W.  112;  Dowd  v. 
Tucker,  41  Conn.  198;  Williams  v.  Vreeland,  29  N.  J.  Eq.  417;  Church  v. 
Ruland,  64  Penn.  St.  432;  Rick's  App.,  105  id.  528;  Beach  v.  Dyer,  93  111. 
295;  Long  v.  Fox.  100  id.  43;  Brophy  v.  Lawler,  107  id.  284;  Henschel  v. 
Mamero,  120  id.  660;  Ludlow  v.  Flournoy,  34  Ark.  451.  A  trust  sale  may  be 
set  aside  when  oppressive  to  the  knowledge  of  the  purchaser.  Littell  v. 
Grady,  38  Ark.  584. 

268 


CHAP.  VI.]     MISREPRESENTATION  AND  FRAUD.        [§  171. 

purchaser  holds  in  trust;  it  would  be  a  fraud  to  allow  him  to 
repudiate  the  contract.^  (a)  Mere  declarations  and  admissions 
of  the  party  to  be  charged  accompanying  the  transfer  of  title 
have  been  held  sufficient  to  raise  a  trust.-  It  must  be  remem- 
bered, in  connection  with  these  cases,  that  although  they  are 
placed  on  the  ground  of  fraud,  the  doctrine  of  North  Caro- 
lina, that  trusts  in  land  may  be  created  by  parol,  probably  has 
had  an  influence  in  nearly  all  the  decisions.^  In  Pennsylvania, 
an  agreement  to  allow  redemption  is  held  to  be  within  the  statute 
of  frauds,  and  will  not  be  enforced  as  creating  a  constructive 
trust.''    Equity  will  enforce  a  parol  promise  to  a  testator  by  a 

»  Mulholland  v.  York,  82  N.  C.  510;  Tankard  v.  Tankard,  84  id.  286; 
McNair  i'.  Pope,  100  id.  408.  See  also  Turner  v.  King,  2  Ired.  Eq.  132; 
Vannoy  v.  Martin,  id.  169;  Veetal  v.  Sloan,  76  N.  C.  127;  McLeod  v.  Bul- 
lard,  84  id.  515;  Cheek  v.  Watson,  85  id.  195;  Gidney  v.  Moore,  86  id.  484; 
McKee  v.  Vail,  79  id.  194,  declares  such  a  contract  void  when  not  in  writing; 
but  in  82  N.  C.  510,  supra,  this  case  was  distinguished  on  the  ground  that 
there  was  no  relation  of  confidence  or  equitable  element  in  the  agreement 
in  that  case.  [Waller  t'.  Jones,  107  Ala.  331;  Collins  v.  Williamson,  94  Ga. 
635;  Holmes  r.  Holmes,  106  Ga.  858;  Pope  v.  Dapray,  176  111.  478;  Hughes 
V.  Willson,  128  Ind.  491;  Parker  v.  Catron,  120  Ky.  145;  Vanbever  v.  Van- 
bever,  97  Ky.  344;  Griffin  v.  Schlenk,  102  S.  W.  837  (Ky.  1907);  Carter  v. 
Dotson,  92  S.  W.  600  (Ky.  1906);  PhilHps  i;.  Hardenburg,  181  Mo.  463; 
Dickson  v.  Stewart,  71  Neb.  424;  Davis  v.  Kerr,  141  N.  C.  11;  Hinton  v. 
Pritchard,  107  N.  C.  128;  Coleman  v.  McKee,  24  R.  I.  596;  Chadwick  v. 
Arnold,  34  Utah,  48;  Frost  v.  Perfield,  44  Wash.  185;  Cutler  v.  Babcock,  81 
Wis.  195;  Rochefoucauld  v.  Boustead,  (1897)  1  Ch.  196;  See  Lancaster 
Trust  Co.  V.  Long,  220  Pa.  St.  499;  Aborn  v.  Padelford,  17  R.  L  143;  Boyd 
V.  Hankinson,  92  Fed.  49;  Carr  v.  Craig,  138  Iowa,  526.  See  contra, 
Bourke  v.  Callanan,  160  Mass.  195.] 

2  Smiley  v.  Pearce,  98  N.  C.  185. 

'  See  §  75. 

*  Salsbury  v.  Black,  119  Penn.  St.  200;  Kimmel  v.  Smith,  117  id.  183, 

(a)  It  has  been  pointed  out  since  the  sheriff  or  the  mortgagee 
that  a  person  purchasing  at  a  sale  at  such  a  sale  acts  as  a  sort  of  agent 
on  execution  or  on  foreclosure  of  of  the  debtor  or  mortgagor  and  con- 
mortgage  with  such  an  agreement  veys  the  latter's  title.  Dickson  v. 
with  the  owner  of  the  property  is  Stewart,  71  Neb.  424;  Stafford  v. 
in  substantially  the  same  position  Stafford,  29  Tex.  Civ.  App.  73, 
as  one  taking  an  absolute  convey-  See  also  Livingstone  v.  Murphy, 
ance  directly  from  the  owner  of  the  187  Mass.  315. 
property  with  an  oral  defeasance, 

269 


§  171.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

legatee  to  hold  the  legacy  for  the  benefit  partly  or  wholly  of  an- 
other, in  consideration  of  which  promise  the  testator  for  the  ben- 
efit of  such  third  person  makes  the  bequest  to  the  promissor.  It 
would  be  a  fraud  for  the  legatee  to  retain  the  property  for  his 
own  benefit.^  Even  silent  acquiescence  encouraging  a  tes- 
tator to  make  a  will  with  a  declared  expectation  that  he  will 
apply  it  for  the  benefit  of  others,  has  been  held  to  have  the  force 
of  an  express  promise.^  A  parol  promise  on  consideration  of 
which  a  deed  was  made  will  be  enforced  in  equity.^  Where  the 
devisee,  under  a  will  defectively  executed,  obtained  a  conveyance 
of  the  estate  from  the  heir-at-law  by  representing  that  the  will 
was  duly  executed,^  or  where  an  executor  obtained  a  release  of  a 
legacy  by  representing  that  there  was  no  legacy  given  by  the  will,^ 

and  cases  cited.  [Grove  v.  Kase,  195  Pa.  St.  325;  1  Purdon's  Dig.  (13th  ed.) 
p.  1180,  §  154,  Acts  of  1881,  P.  L.  84.  See  Goodwin  v.  McMinn,  193  Pa. 
St.  646.] 

1  Vreeland  v.  Williams,  32  N.  J.  Eq.  734.  See  Socher's  App.,  104  Penn. 
St.  609.  [Jerome  v.  Bohm,  21  Colo.  322;  Bohm  v.  Bohm,  9  Colo.  100;  Buck- 
ingham V.  Clark,  61  Conn.  204;  Dowd  i'.  Tucker,  41  Conn.  197;  Gilpatrick 
V.  Glidden.  81  Me.  137;  Laird  v.  Vila,  93  Minn.  45;  SmuUin  i^.  Wharton,  73 
Neb.  667;  Powell  v.  Yearance,  73  N.  J.  Eq.  117;  O'Hara  v.  Dudley,  95  N.  Y. 
403;  Amherst  College  v.  Ritch,  151  N.  Y.  282;  McCloskey  v.  McCloskey, 
205  Pa.  St.  491;  Hoge  v.  Hoge,  1  Watts  (Pa.)  163,  214.    See  §  181  and  note.] 

2  LaytJn  v.  Davidson,  95  N.  Y.  263.  [Becker  v.  Schwerdtle,  141  Cal. 
386;  Curdy  v.  Berton,  79  Cal.  420;  Gilpatrick  v.  Glidden,  81  Me.  137; 
O'Hara  »•.  Dudley,  95  N.  Y.  403;  Amherst  College  v.  Ritch,  151  N.  Y. 
282;  Brook  v.  Chappell,  34  Wis.  405.  See  contra,  Moran  v.  Moran,  104 
Iowa,  216;  Moore  v.  Campbell,  102  Ala.  445,  113  Ala.  587.] 

'  Clark  V.  Haney,  62  Tex.  511;  Lott  v.  Kaiser,  61  id.  665.  [Ammonette 
V.  Black,  73  Ark.  310;  Crabtree  t'.  Potter,  150  Cal.  710;  Loomis  v.  Loomis,  148 
Cal.  149;  Becker  v.  Schwerdtle,  141  Cal.  386;  Jones  v.  Jones,  140  Cal.  587; 
Odell  V.  Moss,  137  Cal.  542;  Kimball  v.  Tripp,  136  Cal.  631;  Gallagher 
r.  Northrup,  215  111.  563;  Larmon  v.  Knight,  140  111.  232;  Giffen  v.  Taylor, 
139  Ind.  573;  Gregory  v.  Bowlsby,  126  Iowa,  588;  Pendleton  v.  Patrick, 
57  S.  W.  464  (Ky.  1900);  Collins  v.  Collins,  98  Md.  473  (semble);  Lewis  v. 
Lindley,  19  Mont.  423;  Pollard  v.  McKenney,  69  Neb.  742;  Koefoed  v. 
Thompson,  73  Neb.  128;  Fox  v.  Fox,  77  Neb.  601;  Ahrens  v.  Jones,  169 
N.  Y.  555;  Goldsmith  t;.  Goldsmith,  145  N.  Y.  313;  Richardson  v.  Mc- 
Conaughey,  55  W.  Va.  546  (semble).] 

*  Broderick  t;.  Broderick,  1  P.  Wms.  239. 

'  Jarvis  v.  Duke,  1  Vern.  19;  Murray  v.  Palmer,  18  Sch.  &  L.  474;  James 
V.  Greaves,  2  P.  Wms.  270;  Horseley  v.  Chaloner,  2  Ves.  83. 

270 


CHAP.  VI.]  MISREPRESENTATION    AND    FRAUD.  (§  171. 

or  where  a  purchaser  misrepresented  the  quantity  and  qual- 
ity of  the  land  he  was  about  to  purchase/  or  where  the 
vendor  misrepresented  the  quantity  of  land  in  a  tract  sold,  as 
twenty  acres  overflowed  by  a  river,  when  in  fact  it  was  more 
than  a  hundred  acres,^  or  where  a  husband  and  wife  conveyed 
land  to  A.  on  no  consideration  but  his  promise  to  reconvey  it  to 
the  wife,  and  A.'s  prior  creditors  attached  the  land,^  the  court 
gave  relief.  In  Smith  v.  Richards,^  the  Supreme  Court  of  the 
United  States  cited  the  following  proposition  *  with  approval : 
"Where  a  party  intentionally  or  by  design  misrepresents  a 
material  fact,  or  produces  a  false  impression  ^  in  order  to  mis- 
lead another,^  or  to  entrap  or  cheat  him,  or  to  obtain  an  undue 
advantage  of  him,  —  in  every  such  case  there  is  positive  fraud 
in  the  truest  sense  of  the  term ;  *  there  is  an  evil  act,  with  an  evil 
intent;  dolum  malum,  ad  circumveniendum.  And  the  misrepre- 
sentation may  as  well  be  by  acts  as  words,  by  artifices  that  mis- 
lead ^  as  by  positive  assertions."  ^°  Lord  Thurlow  said,  "  it  would 
be  ridiculous  for  the  court  to  make  a  distinction  between  the 
two  cases."  "  "  Whether  the  party  thus  representing  a  fact  knew 
it  to  be  false  or  made  the  assertion  without  knowing  whether  it 


»  Tyler  v.  Black,  13  How.  231. 

*  Boyce  v.  Grundy,  3  Pet.  210.  See  Preecott  v.  Wright,  4  Gray,  461. 
But  see  Bartlett  v.  Salmon,  6  De  G.,  M.  &  G.  40. 

'  Cox  V.  Arnsmann,  76  Ind.  210. 

*  13  Pet.  36. 

«  1  Story's  Eq.  Jur.  §§  192,  193. 

«  Laidlaw  v.  Organ,  2  Wheat.  195;  Pidcock  v.  Bishop,  3  B.  &  Or.  605; 
Smith  V.  Bank  of  Scotland,  1  Dow,  72;  Evans  v.  Bicknell,  6  Ves.  173. 

'  State  V.  Holloway,  8  Blackf.  45. 

«  Atwood  V.  Small,  6  CI.  &  Fin.  232;  1  Younge,  407;  Taylor  v.  Ashton, 
11  Mee.  &  W.  401;  Warner  v.  Daniel,  1  Wood.  &  M.  103;  Torrey  v.  Buck, 
1  Green,  Ch.  366;  Jarvia  v.  Duke,  1  Vern.  19;  Broderick  v.  Broderick,  1 
P.  Wms.  239. 

'  Chisholra  v.  Gadsden,  1  Strobh.  220;  Huguenin  t-.  Baseley,  14  Ves. 
273;  State  v.  Holloway,  8  Blackf.  45. 

»°  Ibid.;  Laidlaw  t;.  Organ,  2  Wheat.  195;  Smith  v.  Bank  of  Scotland, 
1  Dow,  272;  2  Kent,  484;  Chesterfield  v.  Janssen,  2  Ves.  155;  Neville  v. 
Wilkinson,  1  Bro.  Ch.  546. 

"  Neville  v.  Wilkinson,  1  Bro.  Ch.  546. 

271 


§  172.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

was  true  or  false  is  wholly  immaterial;'  for  the  affirmation  of 
what  one  does  not  know  or  believe  to  be  true  is,  equally  in 
morals  and  law,  as  unjustifiable  as  the  affirmation  of  what  is 
known  to  be  positively  false.^  And  even  if  a  party  innocently 
misrepresent  a  fact  by  mistake,  it  is  equally  conclusive;  for  it 
operates  as  a  surprise  and  imposition  on  the  other  party.  ^  Or,  as 
Lord  Thurlow  expresses  it,  it  misleads  the  parties  contracting  on 
the  subject-matter,"  ^  There  may  also  be  fraud  upon  a  third 
person  not  a  party  to  the  immediate  conveyance  that  will  raise 
a  trust;  for  example,  a  purchaser  knowing  of  a  prior  deed  to  A. 
holds  in  trust  for  A.^  There  is  a  distinction  between  cases  of 
fraud  in  which  equity  will  set  aside  the  sale  altogether,  and  those 
cases  in  which  it  will  allow  the  sale  to  stand,  and  hold  the  pur- 
chaser as  a  trustee.  A  trust  will  not  be  declared,  if  thereby  in 
effect  the  beneficiary  would  receive  the  benefit  of  the  fraud  at 
the  expense  of  a  third  person  equally  innocent.® 

§  172.  If  a  person  purchasing  an  estate  falsely  pretends  and 
represents  that  he  is  purchasing  or  acting  as  agent  for  another, 
when  in  fact  he  is  purchasing  for  himself,  and  such  misrepre- 
sentation misleads  and  throws  the  vendor  off  his  guard,  and  the 

'  Wright  V.  Snow,  2  De  G.  &  Sm.  321.    [See  §  177,  note.] 

*  Ainslie  v.  Medlycott,  9  Ves.  21;  Graves  v.  White,  Freem.  57;  Pearson 
V.  Morgan,  2  Bro.  Ch.  389;  Foster  v.  Charles,  6  Bing.  396;  7  Bing.  105; 
Taylor  v.  Ashton,  11  Mee.  &  W.  401;  Smith  v.  Mitchell,  6  Ga.  458;  Hazard 
V.  Irwin,  18  Pick.  85;  Doggett  v.  Emerson,  3  Story,  733;  Hough  v.  Richard- 
son, id.  691;  Mason  v.  Crosby,  1  Wood.  &  M.  352;  Smith  v.  Babcock,  2  id. 
246;  Hammatt  v.  Emerson,  27  Maine,  308. 

'  Ibid.,  Pearson  v.  Morgan,  2  Bro.  Ch.  389;  Burrows  v.  Locke,  10  Ves. 
475;  De  Manville  v.  Compton,  1  Ves.  &  B.  355;  Ex  parte  Carr,  3  Ves.  &  B. 
Ill;  Carpenter  v.  Am.  Ins.  Co.,  1  Story,  57;  Tayman  v.  Mitchell,  1  Md. 
Ch.  Dec.  496;  Pratt  v.  Philbrook,  33  Maine,  17;  Harding  v.  Randall,  15  id. 
332;  Rosevelt  v.  Fulton,  2  Cow.  129;  Champlin  v.  Laytin,  6  Paige,  189; 
Reese  v.  Wyman,  9  Ga.  439;  Reynell  v.  Sprye,  8  Hare,  222;  Lewis  v.  Mc- 
Lemore,  11  Yerg.  206;  Thomas  v.  McCann,  4  B.  Mon.  601;  Hunt  v.  Moore, 
2  Barr,  105;  Joice  v.  Taylor,  6  G.  &  J.  54;  Lockridge  v.  Foster,  4  Scam.  570; 
Tumbull  V.  Gadsden,  2  Strobh.  Eq.  14. 
^  *  Neville  v.  Wilkinson,  1  Bro.  Ch.  546. 
»  Cannon  v.  Handley,  72  Cal.  133;  see  §  212. 

•  Hudson  V.  Morria,  55  Tex.  605. 

272 


CHAP.  VI.]     MISREPRESENTATION  AND  FRAUD.        [§  172. 

purchaser  makes  a  better  bargain  than  he  otherwise  could,  or 
the  representation  is  in  any  way  material,  equity  will  not  enforce 
the  agreement,  or,  if  it  is  already  executed,  will  convert  the  pur- 
chaser into  a  trustee.^  And  so  if  a  purchaser  at  auction  or  other- 
wise represents  that  he  is  purchasing  or  bidding  for  some  other 
person,  as  for  the  debtor  in  a  sale  under  an  execution,^  or  for  the 
mortgagor  in  a  sale  under  a  foreclosure,  (a)  or  for  the  family 
under  an  executor's  or  administrator's  sale,  (6)  and  competition 
is  thus  prevented  and  the  purchase  is  made  on  his  own  terms, 
equity  will  decree  that  such  person  shall  be  a  trustee  for  the 
person  for  whom  he  represented  that  he  was  acting.  So  if  a 
purchaser  by  fraud  prevents  other  purchasers  from  attending  a 
sale,^  or  if  a  purchaser  fraudulently  agrees  that  he  will  pur- 
chase an  estate  in  his  own  behalf  and  that  of  another,  in  order  to 
prevent  competition,  and  gets  the  property  into  his  own  name, 
at  a  less  price,  he  will  be  a  trustee  for  the  person  defrauded.* 
On  the  other  hand,  where  an  agent  makes  a  fraudulent  repre- 
sentation, or  does  a  fraudulent  act,  in  a  purchase  or  sale,  with  or 

*  Phillips  V.  Bucks,  1  Vem.  227  and  notes;  Fellowes  v.  Gwydyr,  1  Sim. 
63,  1  R.  &  M.  83.  But  a  mere  mistake  of  parties  will  not  avoid  a  lease. 
Stiner  v.  Stiner,  58  Barb.  643.  [Rollins  v.  Mitchell,  52  Minn.  41;  Gates  t;. 
Kelley,  15  N.  D.  639;  Johnston  v.  ReiUy,  66  N.  J.  Eq.  451.  See  Sykes  v. 
Boone,  132  N.  C.  199.] 

*  Peebles  v.  Reading,  8  Ser.  &  R.  484;  Gilmore  v.  Johnson,  29  Ga.  67; 
Belcher  v.  Saunders,  34  Ala.  9;  Roller  v.  Spilmore,  13  Wis.  26;  Arnold  v.  Cord, 
16  Ind.  176;  Northcote  v.  Martin,  28  Miss.  469;  Soggins  v.  Heard,  31  Miss. 
426;  Pearson  v.  East,  36  Md.  28;  Minot  v.  Mitchell,  30  Ind.  228.  [Griffen 
V.  Schlenk,  102  S.  W.  837  (Ky.  1907);  Carter  i'.  Dotson,  92  S.  W.  600  (Ky. 
1906);  PhilUps  v.  Hardenburg,  181  Mo.  463;  Davis  v.  Kerr,  141  N.  C.  11; 
Coleman  v.  McKee,  24  R.  I.  596.] 

'  Martin  v.  Blight,  4  J.  J.  Marsh.  491;  Rives  v.  Lawrence,  4  Ga.  283; 
Beegle  v.  Wentz,  55  Penn.  St.  369;  Boynton  i;.  Housler,  73  id.  453;  Wolford 
V.  Herrington,  74  id.  311. 

*  McCuUoch  V.  Cowher,  5  Watte  &  S.  427;  Ferguson  v.  Williamson,  20 
Ark.  272;  Owson  v.  Cown,  22  Miss.  329.  [See  contra,  Bourke  v.  Callanan, 
160  Maas.  195;  Carr  v.  Graham,  128  Ga.  622.    See  infra,  §  206,  note.] 

(a)  Holmes  v.  Holmes,  106  Ga.  512.  See  also  Vanbever  v.  Vanbever, 
858.  97  Ky.  344. 

(6)  Woodfin  V.  Marks,  104  Tenn. 

VOL.  I.  —  18  273 


§   173.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

without  the  privity  or  knowledge  or  consent  of  his  principal,  and 
the  principal  adopts  the  bargain  and  attempts  to  reap  an  ad- 
vantage from  it  so  tainted  by  the  fraud  of  the  agent,  he  will  be 
held  bound  by  the  fraud  of  the  agent,  and  relief  will  be  given/ 
Indeed,  the  doctrine  has  been  thus  broadly  stated:  "That 
where  once  a  fraud  has  been  committed,  not  only  is  the  person 
who  committed  the  fraud  precluded  from  deriving  any  benefit 
from  it,  but  every  innocent  person  is  so  likewise,  unless  he  has 
innocently  acquired  a  subsequent  interest;  for  a  third  person, 
by  seeking  to  derive  any  benefit  under  such  a  transaction,  or  to 
retain  any  benefit  resulting  therefrom,  becomes  particeps  criminisy 
however  innocent  of  the  fraud  in  the  beginning."  ^  And  the 
same  rule  applies  with  more  force  to  misrepresentations  made 
by  one  of  several  partners.'  But  if  the  agreement  is  a  fair  one 
between  the  parties,  it  will  not  be  affected  because  brought 
about  by  the  fraud  of  some  third  person  for  his  collateral  bene- 
fit.* And  if  the  agreement  is  not  a  fair  one,  it  will  not  be  invali- 
dated by  the  fraudulent  representations  of  a  third  person  in  no 
way  connected  with  either  party ,^  unless  the  circumstances  are 
such  that  the  bargain  may  be  said  to  have  been  entered  into  by 
mistake.' 

§  173.  However  repugnant  to  entire  good  faith  and  sound 
morals  any  misrepresentation  upon  any  subject,  however  made, 

1  Ferson  v.  Sanger,  1  Wood.  &  M.  147;  Warner  v.  Daniels,  id.  90;  Eabbe 
V.  Hamilton  Ins.  Co.,  11  Gray,  163;  Brooke  v.  Berry,  2  Gill,  83;  FitzBimmons 
V.  Joslin,  21  Vt.  129;  Fuller  v.  Wilson,  3  Ad.  &  El.  (n.  s.)  58.  See  also  Corn- 
foot  V.  Fowke,  6  M.  &  W.  358;  National  Exchange  Co.  v.  Drew,  2  Macq.  103; 
Sugd.  144,  V.  &  P.  718;  Gentry  v.  Law,  4  Nev.  97. 

*  Hortopp  V.  Hortopp,  21  Beav.  259;  Scholefield  v.  Templar,  John.  155; 
Cassard  v.  Hinmao,  6  Bosw.  9;  Wilde  v.  Gibson,  1  H.  L.  Cas.  605;  Elwell 
V.  Chamberlain,  31  N.  Y.  619;  Bennett  v.  Judson,  21  N.  Y.  238;  Buford  v. 
Caldwell,  3  Mo.  477;  Thomas  t;.  McCann,  4  B.  Mon.  601;  Perham  v.  Ran- 
dolph, 4  How.  (Miss.)  435;  Stone  v.  Denny,  4  Met.  161;  Gentry  v.  Law, 
4  Nev.  97. 

»  Blair  v.  Bromley,  2  Phill.  239,  354. 

«  Bellamy  v.  Sabine,  2  Phill.  425;  Blackie  v.  Clarke,  15  Beav.  595. 

»  Fisher  t).  Boody,  1  Curtis,  206;  Beach  v.  Dyer,  93  111.  295. 

•  Ibid.  And  it  must  be  a  fraud  at  the  time  of  the  purchase,  not  after- 
wards.   Wheeler  v.  Reynolds,  67  N.  Y.  227. 

274 


CHAP.  VI.]     MISREPRESENTATION  AND  FRAUD.        [§  173. 

may  be,  courts  of  justice  cannot  undertake  to  sit  as  censors 
upon  mere  morals.  There  are  in  every  community  two  classses 
of  rights,  —  perfect  rights,  and  imperfect  rights.  Perfect  rights 
are  those  that  may  be  enforced,  or  for  the  breach  of  which  dam- 
ages may  be  recovered;  imperfect  rights  are  those  which  are 
conceded  to  every  man,  but  which  cannot  be  enforced  by  human 
tribunals,  and  for  the  breach  of  which  no  damages  can  be  re- 
covered. Thus  every  man  has  a  right  to  the  utmost  good  faith, 
and  the  most  perfect  frankness  and  truthfulness  in  all  the  trans- 
actions of  business;  but  courts  of  justice  would  be  utterly  power- 
less to  enforce  such  a  standard  of  morality.  They  would  have 
neither  the  time  nor  the  means  of  investigating  the  innumer- 
able arts  of  buyers  and  sellers.  And  so  courts  have  been  obliged 
to  lay  down  certain  practical  rules  and  limitations  upon  the 
subject  of  misrepresentation.  Thus  the  misrepresentation  must 
generally  be  of  facts,  or  matters  of  fact,  and  not  of  mere  matters 
of  expectation  or  opinion,^  as  if  one  should  represent  that  an 
estate  contained  a  valuable  mine,  when  in  fact  no  mine  existed,^ 
or  that  an  estate  contained  only  two  or  three  hundred  acres, 
when  in  fact  it  contained  over  twelve  hundred  acres,  or  that 
there  was  no  timber  upon  it,  when  there  was  a  large  amount  of 
valuable  timber,^  or  the  seller  should  falsely  represent  that  the 
custom  of  a  public-house  was  a  certain  sum  monthly,"*  or  that  an 
estate  was  situate  in  one  locality  or  county,  when  it  was  situate 
in  another,^  or  that  stocks  were  selling  for  such  a  sum  in  the 
market,  when  they  were  worthless,^  or  that  a  third  person  has 
paid  a  certain  sum  for  the  same  property,^  or  that  it  rents  for  so 
much.*    In  these  and  similar  cases  the  misrepresentation  is  of 

1  Ferson  v.  Sanger,  1  Wood.  &  M.  146;  Warner  v.  Daniels,  id.  98;  Rush 
V.  Vought,  55  Penn.  St.  437. 

*  Lowndes  v.  Lane,  2  Cox.  363. 
»  Tyler  v.  Black,  13  How.  230. 

*  Pilmore  v.  Hood,  6  Scott,  827. 

6  Best  i;.  Stow,  2  Sandf.  Ch.  298;  Bennett  v.  Judson,  21  N.  Y.  238. 

•  Manning  v.  Albee,  11  Allen,  522.    See  Warner  i».  Daniels,  1  Wood.  A. 
M.  102. 

'  Medbury  v.  Watson,  6  Met.  259. 

•  Elkinfl  V.  Treeham,  1  Sev.  102;  1  Sid.  146. 

275 


§  174.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

facts  that  go  to  the  merits  of  the  contract,  and  avoids  it,  if  false. 
But  if  the  representation  is  to  the  value,  which  is  matter  of 
opinion,  it  will  not  in  general  avoid  the  contract,  as  where  the 
affirmation  is  that  the  estate  is  worth  so  much ;  or  even  if  the 
representation  is  stronger,  as  that  so  much  was  given  for  it,  or 
that  so  much  has  been  offered  or  refused.^  Any  person  who  con- 
fides in  or  is  cheated  by  such  representations  is  considered  too 
careless  of  his  own  interests  to  invoke  the  interposition  of  courts.^ 
A  misrepresentation,  however,  of  a  mere  matter  of  opinion  may 
avoid  a  contract,  or  convert  the  fraudulent  party  into  a  trustee, 
where  the  other  party  is  known  to  place  confidence  in  the  opin- 
ions and  judgments  of  the  person  with  whom  he  is  dealing,  or 
where  the  relations  between  the  parties  are  of  a  confidential  and 
fiduciary  character,  or  where  one  party  has  peculiar  or  exclusive 
means  of  acquiring  proper  information  upon  which  to  form  a 
judgment  or  opinion,^  or  where  the  representations  are  such  that 
one  party  is  induced  to  rely  upon  the  opinions  of  the  other .^ 

§  174.  Again,  the  misrepresentation  must  be  of  some  fact 
material  to  the  contract,  or  of  something  that  goes  to  its  essence;^ 
as  if  an  estate  is  represented  to  contain  one  thousand  acres,  and  it 
contains  nine  hundred  and  ninety-nine  acres,®  or  if  the  age  of  an 

1  Hepburn  v.  Dunlop,  1  Wheat.  189;  Irvine  v.  Kirkpatrick,  3  Eng.  L. 
&  Eq.  17;  Medbury  v.  Watson,  6  Met.  259;  Bacon  v.  Bronson,  7  John.  Ch. 
144;  Stone  v.  Denny,  4  Met.  151;  Small  v.  Atwood,  3  Younge  Exch.  407; 
Veasey  v.  Doton,  3  Allen,  351;  Hemmer  v.  Cooper,  8  Allen,  334;  Best  v. 
Blackburn,  6  Litt.  51;  Speiglemyer  v.  Crawfort,  6  Paige,  254. 

*  Manning  v.  Albee,  11  Allen,  522;  2  Kent,  484,  485;  Vernon  v.  Keys, 
12  East,  632;  Hough  v.  Richardson,  3  Story,  696;  Jenkins  v.  Eldredge,  id. 
181. 

»  Scheoffer  v.  Sleade,  7  Blackf.  178;  Hill  v.  Gray,  1  Starkie,  352;  Keates 
V.  Cadogan,  2  Eng.  L.  &  Eq.  321. 

*  ReyneU  v.  Sprye,  8  Hare,  222;  1  De  G.,  M.  &  G.  660. 

^  Phillips  V.  Bucks,  1  Vem.  227;  Hough  v.  Richardson,  3  Story,  659; 
Tumbull  V.  Gadsden,  2  Strobh.  Eq.  14;  Morris  Canal  v.  Emmett,  9  Paige, 
186;   Clark  v.  Everhart,  63  Penn.  St.,  347. 

«  Ibid.;  Stebbins  v.  Eddy,  4  Mason,  414;  Winston  v.  Gwathmey,  8  B. 
Mon.  19;  Winch  v.  Winchester,  1  Ves.  &  B.  375;  Ingpont  v.  Worcup,  Finch. 
310. 

276 


CHAP.  VI.]  MISREPRESENTATIONS.  {§  175. 

article  is  represented  to  be  ten  years,  and  it  is  a  few  months 
more  or  less,^  or  a  thing  is  represented  to  have  been  purchased  in 
one  place  and  it  is  in  fact  purchased  at  another,^  or  if  a  spring  of 
water  is  represented  to  be  upon  a  given  tract  of  land,  when  in 
fact  it  is  not: '  in  all  these  matters  the  facts  represented  are  too 
trifling  or  collateral  to  be  material,  and  no  relief  would  be 
granted.  Yet,  if  the  leading  motive  of  the  purchase  of  an 
estate  was  known  to  be  material,  relief  would  be  granted.  As, 
if  the  leading  motive  of  the  purchase  of  an  estate  was  known 
to  be  the  purpose  of  acquiring  a  spring  of  water,  then  a  fraud- 
ulent misrepresentation  as  to  the  locality  of  the  spring  would 
become  material  to  the  contract ;  or  if  the  vendor  should  fraud- 
ulently point  out  the  boundary  lines,  so  as  to  take  in  the 
spring,  or  more  land  than  belonged  to  him,  the  contract  would 
be  avoided.^  But  if  the  boundaries  are  properly  pointed  out, 
a  misrepresentation  as  to  the  number  of  acres  in  a  farm  is  not 
material.^ 

§  175.  The  misrepresentation  must  also  be  of  something 
peculiarly  within  the  knowledge  of  one  of  the  parties,  or  the  facts 
must  be  of  such  a  nature  that  both  parties  cannot  easily  obtain 
the  information.  Thus,  if  both  parties  have  the  same  means  of 
information,  as  if  both  parties  go  upon  a  tract  of  land  and  have 
equal  means  of  judging  of  the  quantity  of  timber  upon  it,^  or  if 
representations  are  made  of  town  lots  and  the  future  prospects 
of  the  town,  and  the  facts  are  equally  open  to  both  parties  upon 
inquiry,^  or  if  there  is  a  misrepresentation  of  title,  and  the  facts 
are  equally  accessible  to  both  parties,^  or  generally,  if  both  par- 

^  Geddes  v.  Pennington,  5  Dow,  159. 
»  Ibid. 

*  Winston  v.  Gwathmey,  8  B.  Mon,  19. 

*  ElUott  V.  Boaz,  9  Ala.  772. 

'  Stebbins  v.  Eddy,  4  Mason,  414;  Morris  Canal  v.  Emmett,  9  Paige, 
168. 

'  Hough  V.  Richardson,  3  Story,  659;  Tindall  v.  Harkinson,  19  Ga.  448. 

'  Bell  V.  Henderson,  6  How.  (Miss.)  311. 

»  Glasscock  v.  Minor,  11  Mo.  655;  Juzan  v.  Toulmin,  9  Ala.  662. 

277 


§  176.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

ties  have  the  same  information,  or  an  equal  opportunity  to 
obtain  the  same  information,  there  cannot  be  such  a  fraud,  aris- 
ing from  such  a  misrepresentation  as  will  convert  one  of  the  par- 
ties into  a  trustee.^  So  if  there  are  fraudulent  misrepresentations 
sufficient  to  avoid  the  contract,  and  the  innocent  party  obtains 
a  knowledge  of  all  the  facts  before  completing  the  contract,  he 
can  have  no  relief.^  And  so  if  the  misrepresentations,  though 
fraudulent,  are  so  vague  and  uncertain  that  they  ought  not  to 
mislead  a  reasonable  man,  but  should  rather  put  him  upon 
inquiry,  he  can  have  no  relief.^ 

§  176.  The  action  of  courts  in  cases  of  alleged  fraud  will  fre- 
quently depend  upon  the  form  in  which  the  matter  is  brought 
before  them,  and  upon  the  relief  sought  in  the  proceedings. 
Thus  a  bill  may  be  brought  by  a  party  for  the  specific  perform- 
ance of  a  contract  which  he  holds,  or  a  bill  may  be  brought  by 
a  party  to  set  aside  the  contract,  or  convert  the  opposite  party 
who  holds  under  the  contract  into  a  trustee,  or  a  suit  may  be 
brought  by  a  party  at  common  law  to  recover  damages  for  the 
breach  of  the  same  contract.  It  does  not  follow,  because  a 
court  of  equity  would  refuse  to  decree  the  specific  perform- 
ance of  a  contract,  that  it  would  also,  on  a  proper  bill,  decree 
the  contract  to  be  set  aside,  or  that  it  would  order  the  party 
claiming  under  it  to  be  trustee  for  the  other  party.*  And  so 
if  a  party  comes  into  a  court  of  equity  to  ask  that  an 
agreement  which  he  holds  may  be  specifically  performed  by 
the  opposite  party,  he  must  come  with  clean  hands,  as  it 
is  said.  There  must  not  be  any  fraud,  misrepresentation,  or 
concealment  on  his  part  in  procuring  the  contract;  or,  still 
stronger,  there  must  not  be  a  suspicion  of  concealment,  mis- 
representation, fraud,  or  unfairness  adhering    to    him.     And 

'  Hobbs  V.  Parker,  31  Maine,  143;  Hutchinson  v.  Brown,  1  Clark,  408. 
»  Yeates  v.  Prior,  6  Eng.  68;  Knuckolls  v.  Lea,  10  Humph.  577;  Pratt 
».  Philbrook,  33  Maine,  17. 

•  Hough  V.  Richardson,  3  Story,  659. 

*  1  Story's  Eq.  Jur.  §  693. 

278 


CHAP.  VI.]  CONCEALMENT.  [§  177. 

even  further,  if  the  bargain  imposes  great  hardship  on  the 
^defendant,  or  is  made  under  any  misapprehension  or  mis- 
take, or  unadvisedly,  courts  of  equity  will  decline  to  inter- 
fere actively  in  decreeing  a  specific  execution  of  the  agreement, 
but  will  leave  the  parties  to  their  rights  at  law.'  It  will  be  seen 
from  this  that  it  requires  much  less  evidence  of  fraud  to  enable  a 
defendant  to  resist  the  specific  performance  of  an  agreement, 
than  it  requires  to  enable  him  to  succeed  as  a  plaintiff  in  a  bill  to 
set  aside  the  same  contract.^  In  the  case  last  named  he  must 
establish  the  fraud  aflfirmatively,  by  proof  of  the  facts  and  cir- 
cumstances, to  the  reasonable  satisfaction  of  the  court.  And 
there  may  be  such  a  case  that  the  court  would  refuse  to  set  aside 
a  contract  on  the  one  side,  because  the  evidence  of  fraud  was 
insufficient  to  set  the  court  in  motion;  and  on  the  other  side 
it  would  refuse  to  decree  a  specific  performance,  because  the 
circumstances  were  too  suspicious  to  allow  it  actively  to  inter- 
fere for  the  other  party.  In  such  case  the  parties  would  be 
left  to  an  action  at  common  law  upon  the  agreements  with  such 
rights  as  they  may  have  in  a  common-law  suit.^ 

§  177.  The  rules  that  apply  to  affirmative  acts  or  repre- 
sentations which  mislead,  deceive,  and  defraud,  are  of  com- 
paratively easy  application  in  most  cases.  A  single  aflBrmative 
word  upon  a  material  matter  tending  to  mislead,  and  actually 
misleading,  is  enough  to  establish  fraud  .^  (a)    It  is  the  suggestio 

^  Savage  v.  Brocksopp,  18  Ves.  335;  Cadman  v.  Homer,  id.  12;  Clermont 
V.  Tasburg,  1  Jac.  &  W.  112;  Wall  v.  Stubbs,  1  Madd.  80;  Mortlock  v.  Bullet, 
10  Ves.  292. 

^  Ibid.;  Townshend  v.  Stangroom,  6  Ves.  328  n.;  Lowndes  v.  Lane, 
2  Cox,  363. 

»  Story'a  Eq.  Jur.  §  693. 

*  Turner  v.  Harvey,  1  Jac.  169. 

(a)  The  rule  in  most  jurisdictions  though    made    carelessly   or   negli- 

now  is  that  one  person  is  not  liable,  gently,  and  without   investigation, 

at  least  in  an  action  of  deceit,  for  a  provided  he  made  it  in  the  honest 

false  representation  upon  the  faith  of  belief  that  it  was  true.     Derry  v. 

which    another    person    acts,    even  Peek,  14  A.  C.  337;  Angusr.  Chfford, 

279 


§  177.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

^alsi  which  may  be  defined  to  be  a  false  affirmation,  in  whatever 
form  it  may  be  made,  whether  by  words  or  acts,  of  a  material 
fact,  rightfully  acted  upon  by  the  other  party :  such  an  affirma- 
tion avoids  the  contract  or  converts  the  offending  party  into  a 
trustee  for  the  person  defrauded.  But  how  far  a  contracting 
party  may  legally  conceal  facts  known  to  him,  affecting  the 
value  of  the  subject-matter  of  the  agreement,  is  another  and 
more  difficult  question.  There  is  no  doubt  in  sound  morals 
upon  the  matter.  The  natural  instincts  of  every  right-minded 
man  concur  with  every  writer  on  morals  in  condemning  every 
concealment  that  suffers  another  to  contract  in  ignorance  of 
the  facts  that  give  value  to  his  property.^  The  common  law 
teaches  as  high  a  standard  of  morals  as  any  other  system  of 
law.  The  decisions  of  judges  and  the  books  of  elementary 
writers  contain  the  highest  and  purest  maxims  of  good  faith  and 
sound  morality  in  every  transaction  and  relation  of  life.  When- 
ever, therefore,  a  question  of  concealment  arises,  either  in  a  suit 
at  common  law  or  in  equity,  it  cannot  be  a  question  what  the 
highest  morality  requires;  but  it  is  a  question  how  far  courts 
can  go  practically  in  giving  relief,  without  rendering  the  con- 
tracts of  men  so  uncertain  that  no  business  could  be  transacted 
without  danger  of  prolonged  litigation.  In  communities  gov- 
erned by  known,  fixed,  and  practical  rules,  and  not  by  the  mere 


1  Cic.  de  Off.  Lib.  3,  c.  12,  13;  Paley,  Mor.  Phi.  B.  3,  c.  7;  Grotius,  B.  2, 

c.  12,  §  9;  Puff.  De  Jure  Nat.  B.  5,  c.  3,  §  4. 

[1891]  2  Ch.  449;  Nash  v.  Minne-  obligation  of  a  trustee  to  give,  on 

sota    Title    Co.,    163    Mass.    574;  demand,  to  his  cestui  que  trust  in- 

Kountze   v.    Kennedy,    147    N.    Y.  formation  as  to  the  trust  fund;  but 

124;  Houston  v.  Thornton,  122  N.  C.  the  trustee  is  not  obliged  to  answer 

365.      But    indifference    as    to    the  the  inquiries  of  a  stranger,  like  an 

truth  or  falsity  is  inconsistent  with  intending    incumbrancer,    who     is 

an  honest  belief  in  the  truth  of  the  about  to  deal  with  the  cestui  que 

representation.     Ibid.     The  above  trust.     Low  v.   Bouverie,    [1891]    3 

rule  does  not  apply  when  there  is  Ch.  82;  Re  Wyatt,  65  L.  T.  214; 

a  legal  obligation  on  the  part  of  one  [1891]  W.  N.  137,  192;  In  re  Tillott, 

person  towards  another  to  give  him  [1892]   1    Ch.   86;   In  re   Dartnall, 

correct    information,    such    as    the  [1895]  1  Ch.  474. 

280 


CHAP.  VI.]  CONCEALMENT.  [§  178. 

discretion  of  men  or  judges,  it  sometimes  happens  that  courts 
must  decline  to  give  relief  in  cases  where  a  man  of  pure  prin- 
ciples and  delicate  honor  would  scorn  to  obtain  or  hold  an 
advantage.  Thus,  in  all  cases  of  suggestio  falsi,  where  active 
steps  have  been  taken  to  deceive  and  gain  an  advantage, 
courts  have  little  trouble  in  giving  relief  ;  but  where  an 
advantage  has  been  gained  by  concealment,  or  suppressio 
veri,  as  it  is  called,  or  by  mere  silence,  it  is  more  diffi- 
cult to  lay  down  fixed  rules  that  may  not  do  more  harm 
than  good  to  business  and  society.  However,  concealment, 
or  suppressio  veri,  is  often  of  that  fraudulent  character  that 
avoids  a  contract  or  converts  the  offending  party  into  a 
trustee. 

§  178.  There  may  be  such  relations  between  the  parties  that 
silence,  or  the  non-disclosure  of  a  material  fact,  will  be  a  fraud- 
ulent concealment.  If  a  person  standing  in  a  special  relation 
of  trust  and  confidence  to  another  has  information  concerning 
property,  and  contracts  with  the  other,  and  does  not  disclose 
his  exclusive  knowledge,  the  contract  may  be  avoided,  or  he 
may  be  held  as  a  constructive  trustee.^  Thus,  if  an  attorney 
contracts  with  his  client  without  disclosing  to  him  material 
facts  in  his  possession,  the  contract  would  be  void.  The  trust 
and  confidence  of  the  client  in  his  attorney  is  such  that  an  obli- 
gation is  imposed  upon  the  attorney  to  communicate  every 
material  circumstance  of  law  or  fact.  Mere  silence,  under  such 
circumstances,  becomes  fraudulent  concealment.-  The  same 
rule  applies  to  all  contracts  of  an  agent  with  his  principal,  prin- 

>  Pidcock  V.  Bishop,  3  B.  &  Cr.  605;  Martin  v.  Morgan,  1  Brod.  &  Bing. 
289;  Squire  v.  Whitton,  1  H.  L.  Cas.  333;  Owen  v.  Homan,  3  Eng.  L.  &  Eq. 
121;  5  Mac.  &  Gor.  378;  Etting  v.  Bank  of  U.  S.  11  Wheat.  59;  Carew's 
Case,  7  De  G.,  M.  &  G.  43;  Smith  v.  Bank  of  Scotland,  1  Dow, 
P.  Cas.  292;  Clark  v.  Everhart,  63  Penn.  St.  347;  Miller  v.  Welles,  23 
Conn.  33. 

«  Bulkley  v.  Wilford,  2  Clark  &  Fin.  102.  [Luddy'e  Trustee  v.  Peard, 
33  Ch.  Div.  500;  U.  S.  v.  Coffin,  83  Fed.  337;  Darlington's  Estate,  147  Pa. 
St.  624.] 

281 


§   178.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

cipal  with  his  surety,  (a)  landlord  with  his  tenant,  parent  with 
his  child,  guardian  with  his  ward,  ancestor  with  the  heir,  hus- 
band with  his  wife,  trustee  with  his  cestui  que  trust,  executors  or 
administrators  with  creditors,  legatees,  or  distributees  of  the 
estate,  partners  with  their  copartners,  appointors  with  their 
appointees,  and  part-owners  with  part-owners;  ^  though  the 
part-owners  of  a  ship,  holding  by  several  and  independent  titles, 
were  held  not  to  stand  in  such  confidential  relations  to  each 
other  that  one  was  under  obligation  to  communicate  material 
facts  upon  a  negotiation  to  purchase.^  If  any  of  the  parties 
above  named  propose  to  contract  with  the  persons  with  whom 
they  stand  in  such  relations  of  trust  and  confidence,  they  must 
use  the  utmost  good  faith.  It  is  not  enough  that  they  do  not 
affirmatively  misrepresent:  they  must  not  conceal;  they  must 
speak,  and  speak  fully  to  every  material  fact  known  to  them,  or 
the  contract  will  not  be  allowed  to  stand.'  Thus,  if  a  partner 
who  keeps  the  accounts  of  the  firm  should  purchase  his  co- 
partner's interest,  without  disclosing  the  state  of  the  accounts, 
the  agreement  could  not  stand.*  The  same  rule  applies  to 
family  relations  in  general;  as,  where  a  younger  brother  dis- 
puted the  legitimacy  of  his  elder  brother,  and  a  settlement  and 
partition  were  entered  into,  the  younger  brother  having  in  his 
possession  facts  that  tended  to  show  that  his  parents  inter- 
married before  the  birth  of  the  elder,  which  facts  he  did  not 

*  Beaumont  v.  Boultbee,  5  Ves.  485;  Ormond  v.  Hutchinson,  13  Ves. 
51;  Gartside  v.  Isherwood,  1  Bro.  Ch.  558;  Wellford  v.  Chancellor,  5  Grat. 
39.    [Schneider  v.  Schneider,  125  Iowa,  1;  infra,  §§  195  et  seq.  and  notes.] 

»  Mathews  v.  BUss,  22  Pick.  48. 

»  Maddeford  v.  Austwick,  1  Sim.  89;  2  M.  &  K.  279;  Popham  t;.  Brooke, 

5  Russ.  8;  Gordon  v.  Gordon,  3  Swanst.  470;  Cocking  v.  Pratt,  1  Ves.  401; 
Higgins  v.  Joyce,  2  Jones  &  La.  328 ;  Farnhamt;.  Brooks,9  Pick.  234;  Ogdenr. 
Astor,  4  Sandf.  S.  C.  312;  Ormond  v.  Hutchinson,  13  Vea.  51;  Beaumont 
V.  Boultbee,  5  Ves.  485;  Gartside  v.  Isherwood,  1  Bro.  Ch.  558. 

*  Maddeford  v.  Austwick,  1  Sim.  89;  2  M.  &  K.  279;  Smith  in  re  Hay, 

6  Madd.  2;  Popham  v.  Brooke,  5  Russ.  8. 

(a)  A  surety  is  under  no  larger    both  of  them.    Mackreth  v.  Walmes- 
obligation    to    disclose    to    his    co-    ley,  51  L.  T.  19. 
surety  than  the  creditor  is  under  to 

282 


CHAP.  VI.]  CONCEALMENT.  [§   179. 

communicate,  the  settlement  was  set  aside.'  The  duty  of  dis- 
closing facts  arises  either  from  a  fiduciary  relation,  or  from  a 
trust  properly  understood  to  be  reposed  in  one  party  by  another 
about  a  matter  concerning  which  the  latter  has  peculiar  means 
of  information.^ 

§  179.  There  are,  also,  cases  where  a  party  must  not  be 
silent  upon  a  material  fact  within  his  knowledge,  although  he 
stands  in  no  relation  of  trust  and  confidence.  Thus,  if  a  party 
taking  a  guaranty  from  a  surety  does  not  disclose  facts  within 
his  knowledge  that  enhance  the  risk,  and  suffers  the  surety  to 
bind  himself  in  ignorance  of  the  increased  risk,^  or  if  a  party  al- 
ready defrauded  by  his  clerk  should  receive  security  from  a 
third  person  for  such  clerk's  fidelity,  without  communicating 
the  fact  of  the  fraud  already  committed,  thus  holding  the  clerk 
out  as  trustworthy ;  ^  in  both  these  and  in  similar  cases  the  con- 
tracts would  be  void  for  concealment.  Silence  as  to  such 
facts,  under  such  circumstances,  would  be  equivalent  to  a  posi- 
tive affirmation  that  no  such  facts  existed.^  And  so,  if  a  party 
knows  that  another  is  relying  upon  his  judgment  and  knowledge 
in  contracting  with  him,  although  no  confidential  relation  exists, 
and  he  does  not  state  material  facts  within  his  knowledge,  the 
contract  will  be  avoided;  for  knowingly  to  permit  another  to 
act  as  though  the  relation  was  confidential,  and  yet  not  to  state 

»  Gordon  v.  Gordon,  3  Swanst.  399;  Cocking  v.  Pratt,  1  Ves.  401. 

2  Maclary  v.  Reznor,  3  Del.  Ch.  445. 

»  Martin  v.  Morgan,  1  Brod.  &  Bing.  289;  Pidcock  v.  Bishop,  3  B.  & 
Cr.  605;  Owen  v.  Homan,  3  Eng.  L.  &  Eq.  121 ;  25  Eng.  L.  &  Eq.  1 ;  4  H.  L. 
Gas.  997;  Carew's  Case,  7  De  G.,  M.  &  G.  43;  Leith  Banking  Co.  v.  Bell, 
8  Shaw  &  Dun.  721;  Railton  v.  Matthews,  10  CI.  &  Fin.  935;  Hamilton  v. 
Watson,  12  id.  119;  Squire  v.  Whitton,  1  H.  L.  Gas.  333;  N.  British  Ins.  Co. 
V.  Lloyd,  28  Eng.  L.  &  Eq.  456;  10  Exch.  523;  Evans  v.  Kneeland,  9  Ala.  42. 

*  FrankUn  Bank  v.  Cooper,  36  Maine,  195;  Smith  v.  Bank  of  Scotland, 
1  Dow.  P.  Gas.  272;  Maltby's  Case,  id.  294;  Etting  v.  Bank  of  U.  S.,  11 
Wheat.  59. 

*  Franklin  Bank  v.  Cooper,  36  Maine,  195;  Smith  v.  Bank  of  Scotland, 
1  Dow,  P.  Gas.  272;  Maltby's  Case,  id.  294;  Etting  v.  Bank  of  U.  S.,  11 
Wheat.  59. 

283 


§  180,]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

material  facts,  is  fraudulent.  It  is  said  that  a  party  in  such 
circumstances  is  bound  to  destroy  the  confiderwe  reposed  in  him, 
or  to  state  all  the  facts  which  such  confidence  demands.  He  cannot 
himself  contract  at  arm's  length,  and  permit  the  other  to  act 
as  though  the  relation  was  one  of  trust  and  confidence.  And 
so,  if  one  party  knows  that  the  other  has  fallen  into  a  delusion 
or  mistake  as  to  an  article  of  property,  and  he  does  not  remove 
such  delusion  or  mistake,  but  is  silent,  and  enters  into  a  con- 
tract, knowing  that  the  other  is  contracting  under  the  influence 
of  such  delusion  or  mistake,  the  contract  may  be  set  aside ;  for, 
not  to  remove  that  delusion  or  mistake  is  equivalent  to  an  express 
misrepresentation.^ 

§  180.  There  must  be  a  positive  concealment  to  amount  to 
a  suppressio  veri.  Mere  silence,  if  nothing  is  done  to  conceal  a 
fact,  is  not  in  general  suppressio  veri.  Aliud  est  celare,  aliud 
tacere.  Mere  silence  between  strangers,  contracting  at  arm's 
length,  and  understanding  that  they  are  so  contracting,  will  not 
in  general  avoid  a  contract,  or  convert  one  of  the  parties  into  a 
trustee  for  the  other.^  Thus,  the  value  of  property  may  fre- 
quently depend  upon  extrinsic  facts;  as,  whether  there  is  peace 
or  war,  whether  there  is  or  is  not  a  demand  in  the  market,  or 
in  a  distant  place  for  property  of  that  description,  w^hether 
transportation  is  accessible,  or  whether  the  money  market  is 
easy  or  close.  If  one  having  information  upon  such  matters 
enters  into  a  contract  with  another  with  whom  he  has  no  con- 
fidential or  fiduciary  relations,  and  he  neither  says  nor  does 
anything  to  mislead  or  deceive,  but  is  simply  silent  upon  the 

1  Per  Mr.  Redfield,  1  Story's  Eq.  Jur.  §  212  a;  Bruce  v.  Ruler,  2  Man. 
&  Ry.  3;  Fitzsimmons  v.  Joslin,  21  Vt.  129;  Hanson  v.  Edgerly,  29  N.  H. 
343;  Bank  of  Republic  v.  Baxter,  31  Vt.  101;  Allen  v.  Addington,  7  Wend. 
10;  11  Wend.  374;  Paddock  v.  Strobridge,  29  Vt.  470;  Dolman  v.  Nokes, 
22  Beav.  402;  Hayward  v.  Cope,  25  Beav.  140;  Foot  v.  Foote,  58  Barb.  258; 
Babcock  v.  Case,  61  Penn.  St.  427. 

»  Keates  v.  Cadogan,  2  Eng.  L.  &  Eq.  318;  Hill  v.  Gray,  1  Starkie,  434. 

»  Fox  V.  Mackreth,  2  Bro.  Ch.  300;  2  Cox,  320;  Harris  v.  Tyson,  24  Penn. 
St.  359;  Mathews  v.  Bliss,  22  Pick.  48. 

284 


CHAP.  VI.]  CONCEALMENT.  [§  180. 

facts  known  to  him,  equity  will  not  in  general  disturb  the  con- 
tract;^ but  if  he  speaks  a  word,  or  does  an  act,  that  tends  to 
mislead  the  other  party,  or  throw  him  off  his  guard,  the  con- 
tract may  be  avoided,  and  he  may  be  converted  into  a  trustee.^ 
The  law  permits  persons  to  deal  at  arm's  length,  if  they  both 
understand  that  they  are  so  dealing,  and  it  permits  them  to  be 
silent  as  to  matters  known  only  to  one  of  them,  if  no  inquiries 
are  made;  but  it  does  not  permit  any  artifice  to  be  added  to 
silence,  in  order  to  conceal  a  fact  material  to  the  contract. 
Thus,  concealment,  or  suppressio  veri,  which  amounts  to  a  fraud 
in  the  sense  of  a  court  of  equity,  and  for  which  it  will  grant 
relief,  is  defined  to  be  the  non-disclosure  of  those  facts  and  cir- 
cumstances which  one  party  is  under  some  legal  or  equitable 
obligation  to  communicate  to  the  other,  and  which  the  latter 
has  a  right,  not  merely  in  foro  conscientice,  sed  juris  et  de  jure, 
to  know.^  Thus,  if  a  stranger  discover  a  valuable  mine  or 
spring,  or  any  other  thing  or  circumstances,  on  or  in  connec- 
tion with  land  of  another,  he  may  be  silent,  and  purchase  the 
land ;  ^  but  if  he  use  any  art  to  prevent  a  knowledge  of  the  fact 
from  coming  to  the  owner,  equity  will  rescind  the  contract,^ 
and  a  very  slight  act  will  convert  innocent  silence  into  fraud- 
ulent concealment.^  But  if  one  of  the  parties  employs  an  agent 
to  contract,  and  the  agent,  knowing  a  material  fact,  is  silent 

»  Fox  t;.  Mackreth,  2  Bro.  Ch.  300;  2  Cox,  320;  Harris  v.  Tyson,  24  Penn. 
St.  359;  Mathews  v.  Bliss,  22  Pick.  48;  Mr.  Kent,  in  the  earlier  editions  of 
his  Commentaries,  stated  a  broader  doctrine,  but  his  later  editions  state 
the  doctrine  as  in  the  text.  See  2  Kent,  482,  484,  490,  and  notes;  Laidlaw 
V.  Organ,  2  Wheat.  178. 

'  Turner  v.  Harvey,  Jac.  169;  Laidlaw  v.  Organ,  2  Wheat.  178;  Mathews 
V.  Bliss,  22  Pick.  48. 

»  Young  V.  Bumpass,  1  Freem.  Ch.  241;  1  Story's  Eq.  Jur.  §  207; 
Irvine  v.  Kirkpatrick,  3  Eng.  L.  &  Eq.  17;  Laidlaw  v.  Organ,  2  Wheat. 
178. 

*  Fox  V.  Mackreth,  2  Bro.  Ch.  400;  2  Cox,  320;  1  Lead.  Cas.  Eq.  188; 
Harris  v.  Tyson,  24  Penn.  St.  359;  Eari  of  Bath,  &c.,  Case,  3  Ch.  Cas.  56, 
74,  103,  104;  Mathews  v.  Bliss,  22  Pick.  48. 

*  Bowman  v.  Bates,  2  Bibb,  47. 

"  Turner  v.  Harvey,  Jac.  169;  Laidlaw  v.  Organ,  2  Wheat.  178;  Torrey 
V.  Buck,  1  Green,  Ch.  380;  Mathews  v.  Bliss,  22  Pick.  48. 

285 


§  181.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

or  conceals  it,  his  principal  will  not  be  affected  with  the  knowl- 
edge, nor  will  the  contract  be  vitiated.' 

§  181.  Courts  of  equity  will  not  only  interfere  in  cases  of 
fraud,  to  set  aside  acts  done,  but  they  will  also,  if  acts  have  by 
fraud  been  prevented  from  being  done,  interfere,  and  treat  the 
case  exactly  as  if  the  acts  had  been  done;  and  this  they  will  do, 
by  converting  the  party  who  has  committed  the  fraud,  and 
profited  by  it,  into  a  trustee  for  the  party  in  whose  favor  the 
act  would  otherwise  have  been  done.^  If  one  by  a  promise  to 
buy  land  at  an  auction  sale  for  one  having  an  equitable  interest 
in  it  induces  the  latter  and  her  friends  not  to  bid  against  him, 
he  will  be  held  a  trustee.^  Where  one  induces  the  owner  of 
real  estate  not  to  redeem  it  by  a  promise  to  hold  the  property 
until  paid  by  the  rents  and  profits,  and  then  to  return  the 
estate,  equity  will  hold  him  to  his  promise.*  So,  if  a  delay  is 
agreed  to  in  the  sale  of  land  on  a  promise  of  the  debtor  to  sell 
privately  and  apply  the  proceeds  in  a  certain  manner,  the  pro- 
ceeds will  be  impressed  with  a  trust.^  If  a  person  by  his  prom- 
ises, or  by  any  fraudulent  conduct,  with  a  view  to  his  own  profit, 
prevents  a  deed  or  will  from  being  made  in  favor  of  a  third 
person,  and  the  property  intended  for  such  third  person  after- 
wards comes  to  him  who  fraudulently  prevented  the  execution 
of  the  will  or  deed,  he  will  be  held  to  be  a  trustee  for  the  person 
defrauded,  to  the  extent  of  the  interest  intended  for  him.®   (a) 

'  Wilde  V.  Gibson,  1  H.  L.  Caa.  605,  reversing  same  case,  2  Y.  &  Col.  542. 

^  Middleton  v.  Middleton,  1  Jac.  &  W.  96;  Reech  v.  Kennegall,  1  Ves. 
123;  Oldham  v.  Litchford,  2  Vem.  506;  Button  v.  Poole,  2  Lev.  211;  Mestaer 
V.  Gillespie,  11  Ves.  638,  and  cases  cited;  Jenkins  v.  Eldredge,  3  Story,  181. 
See  remarks  in  McGowan  v.  McGowan,  14  Gray,  119;  Morey  v.  Herrick,  18 
Pa.  St.  128;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Dixon «;.  Olmius,  1  Cox, 
Ch.  414. 

»  Cowperthwaite  v.  Bank,  102  Penn.  St.  397;  Heath's  App.,  100  id.  1. 
[See  Prondzinski  v.  Garbutt,  10  N.  D.  300.] 

*  Scheffermeyer  v.  Schaper,  97  Ind.  70. 

'  Boyce  v.  Stanton,  15  Lea,  346. 

»  Middleton  v.  Middleton,  1  Jac.  &  W.  96;  Reech  v.  Kennegall,  1  Ves. 

(a)  Cases  of  constructive  trusts  absolute  in  form,  but  given  in  re- 
Imposed  upon  the  grantee  in  a  deed     liance  upon  a  parol  agreement  of 

286 


CHAP.  VI.] 


ACTS   PREVENTED    BY    FRAUD. 


[§  181. 


So,  where  the  tenant  in  tail  in  remainder,  fraudulently  or  by 
force,  prevented  the  tenant  in  tail  for  life  in  possession  from 
Buffering  a  common  recovery,  and  thereby  barring  the  entail 
for  the  purpose  of  providing  for  other  persons  by  will  out  of 
the  estate,  it  was  held  that  the  tenant  in  tail  in  remainder, 
when  the  estate  came  to  him,  was  a  trustee,  and  the  court  took 
care  that  the  estate  should  go  precisely  as  if  the  common  re- 
covery had  been  suffered,  although  the  tenant  in  tail  was  a 
married  woman,  and  the  fraud  had  been  committed  by  her 

123;  Oldham  v.  Litchford,  2  Vem.  506;  Button  v.  Poole,  2  Lev.  211;  Meetaer 
V.  Gillespie,  11  Ves.  638,  and  cases  cited;  Jenkins  v.  Eldrcdge,  3  Storj',181. 
See  remarks  in  McGowan  v.  McGowan,  14  Gray,  119;  Morey  v.  Herrick, 
18  Penn.  St.  128;  Church  v.  Ruland,  64  id.  432;  Wallgrave  i^.Tebbs,  2  K.  &  J. 
313;  Dixon  v.  Olmius,  1  Cox,  Ch.  414;  Fischbeck  t;.  Grose,  112  III.  208. 


the  grantee  to  convey  to  or  to  hold 
for  the  benefit  of  another.    Ammon- 
ette  V.  Black,  73  Ark.  310;  Loomis 
V.  Loomis,  148  Cal.  149;  Becker  v. 
Schwerdtle,  141  Cal.  386;  Jones  v. 
Jones,    140   Cal.    587;   Crabtree   v. 
Potter,  150  Cal.  710;  Odell  v.  Moss, 
137  Cal.  542;  Kimball  v.  Tripp,  136 
Cal.  631;  Alaniz  v.  Casenave,  91  Cal. 
41;   Fisk's  Appeal,   81    Conn.   433 
Gallagher  v.  Northrup,  215  111.  563 
Grossman    v.  Keister,  223    111.  69 
Larmon    v.    Knight,    140    111.    232 
Giffen    v.    Taylor,    139    Ind.    573 
Gregory  v.  Bowlsby,  126  Iowa,  588 
Pendleton  v.  Patrick,  57  S.  W.  464 
(Ky.  1900);    CoUins   v.  Collins,  98 
Md.  473  (semble);  Lewis  v.  Lindley, 
19  Mont.  423;  Schneringer  v.  Schner- 
inger,    81     Neb.     661;    Pollard    t;. 
McKenney,  69  Neb.  742;  Koefoed  v. 
Thompson,  73  Neb.  128;  Fox  v.  Fox, 
77  Neb.  601 ;  Bowler  v.  Curler,  21 
Nev.  158;  Ahrens  v.  Jones,  169  N.  Y. 
555;  Goldsmith  v.  Goldsmith,  145  N. 
Y.313;  Richardson  «;.McConaughey, 
55  W.  Va.  546  (semble) ;  In  re  Duke 
of  Marlborough,  [1894]  2  Ch.  133; 


Rochefoucauld  v.  Boustead,  [1897] 
1  Ch.  196;  Vanbever  v.  Vanbever,  97 
Ky.  344.  Cases  of  constructive 
trusts  imposed  upon  a  devisee  or 
legatee  who  has  orally  agreed  with 
the  testator  to  convey  to  or  hold 
for  the  benefit  of  another  all  or  part 
of  the  property.  Jerome  v.  Bohm, 
21  Colo.  322;  Bohm  v.  Bohm,  9 
Colo.  100;  Buckingham  v.  Clark, 
61  Conn.  204;  Dowd  v.  Tucker,  41 
Conn.  197;  Hughes  v.  Bent,  118 
Ky.  609;  Gilpatrick  v.  Glidden,  81 
Me.  137;  Laird  i^.  Vila,  93  Minn, 
45;  Ragsdale  v.  Ragsdale,  68  Miss. 
92;  Smullin  v.  Wharton,  73  Neb. 
667;  Powell  v.  Yearance,  73  N.  J.  Eq. 
117;  Matter  of  Will  of  O'Hara, 
O'Hara  v.  Dudley,  95  N.  Y.  403; 
Amherst  College  v.  Ritch,  151  N.  Y. 
282  {semble);  Rutherfurd  t;.  Car- 
penter, 119  N.  Y.  S.  790;  McCloskey 
V.  McCloskey,  205  Pa.  St.  491;  Hoge 
V.  Hoge,  1  Watts  (Pa.)  163,  214; 
Washington's  Estate,  220  Pa.  St. 
204.  Cases  of  mutual  wills.  Stone 
V.  Hoskins,  (1905)  Prob.  194;  Stone 
V.  Manning,  103  Tenn.  232. 

287 


§  181.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

husband,  and  she  was  not  privy  to  it.^  And  where  issue  in  tail 
prevented  his  father,  tenant  in  tail,  from  suffering  a  recovery, 
by  promising  to  provide  for  younger  children,  in  favor  of  whom, 
the  recovery  was  to  be  suffered,  equity  converted  the  tenant 
in  tail  into  a  trustee  for  the  younger  children.^  And  where  a 
person  fraudulently  intercepts  a  gift  intended  for  another,  by 
promising  to  hand  it  over  if  it  is  left  to  him,  equity  will  compel 
an  execution  of  the  promise,  by  converting  such  person  into  a 
trustee.'  So,  if  devisees  or  heirs  prevent  a  testator  from  charg- 
ing his  estate  with  annuities  or  legacies,  by  saying  that  it  is 
not  worth  while  to  put  them  in  the  will,  and  that  they  will  pay 
them,  they  will  be  trustees  for  such  intended  annuitants  or 
legatees.^  So,  if  an  executor  prevents  a  gift  or  legacy  from 
being  given  to  one,  by  promising  to  pay  it  as  if  inserted  in  the 
will,  he  will  be  a  trustee.^  So,  where  a  testator  held  a  note 
against  his  father,  which  he  intended  to  give  up  in  his  will,  the 
residuary  legatee  promising  that  she  would  surrender  the  note, 
equity  held  her  to  be  a  trustee.'    So,  where  one  fraudulently 

'  Luttrell  V.  Olmius,  and  Waltham's  Case,  cited  11  Ves.  638;  and  14  Ves. 
290. 

'  Jones  t'.  McKee,  6  Barr,  428;  Devenish  v.  Baines,  Prec.  Ch.  4. 

'  Hoge  V.  Hoge,  1  Watts,  213;  Devenish  v.  Baines,  Prec.  Ch.  4;  Church 
V.  Ruland,  64  Penn.  St.  432;  Dowd  v.  Tucker,  41  Conn.  198;  WiUiams  v. 
Vreeland,  29  N.  J.  Eq.  417.    [Rollins  v.  Mitchell,  52  Minn.  41.] 

*  Chamberlain  v.  Chamberlain,  2  Freem.  34;  Oldham  v.  Litchford,  2 
/ern.  506;  Mestaer  v.  Gillespie,  11  Ves.  638;  Huguenin  v.  Baseley,  14  Ves. 
290;  GriflBn  v.  Nanson,  4  Ves.  344;  Hoge  v.  Hoge,  1  Watts,  213;  Jones  v. 
McKee,  3  Barr,  496,  and  4  Barr,  428;  Norris  v.  Frazer,  L.  R.  15  Eq.  329; 
McCormick  v.  Grogan,  L.  R.  4  H.  L.  82.  [Cassels  v.  Finn,  122  Ga.  33, 
106  Am.  St.  91,  note;  Gemmel  v.  Fletcher,  76  Kan.  577;  Ransdel  v.  Moore, 
153  Ind.  393;  Grant  v.  Bradstreet,  87  Me.  583;  Whitehouse  v.  Bolster,  95 
Me.  458;  Ragsdale  v.  Ragsdale,  68  Miss.  92;  WiUiams  v.  Vreeland,  29  N.  J. 
Eq.  417;  Powell  v.  Yearance,  73  N.  J.  Eq.  117;  Williams  v.  Fitch,  18  N.  Y. 
546;  Richardson  v.  Adams,  10  Yerg.  (Tenn.)  273;  Bennett  v.  Harper,  36 
W.  Va.  547;  Brook  v.  Chappell,  34  Wis.  405.  See  contra,  as  to  real  estate, 
Moore  v.  Campbell,  102  Ala.  445,  113  Ala.  587.] 

'  Thynn  v.  Thynn,  1  Vern.  296;  Reach  v.  Kennigate,  Amb.  67;  Barrow 
V.  Greenbough,  3  Ves.  152;  Chamberlain  v.  Agar,  2  V.  &  B.  250;  Podmore 
V.  Gunning,  7  Sim.  644. 

'  Richardson  v.  Adams,  10  Yerg.  273;  Jones  v.  McKee,  3  Barr,  496. 

288 


CHAP.  VI. 


ACTS    PREVENTED    BY    FRAUD. 


[§  181. 


procured  a  deed  to  be  made  to  herself,  instead  of  to  another.* 
But  there  must  be  some  actual  fraud  in  procuring  a  deed  or 
devise  to  one's  self:  the  mere  breach  of  a  promise  to  convey  is 
not  enough.'  (a)     Where  the  plaintiff  wished  to  buy  certain 

'  Miller  v.  Pearce,  6  Watts  &  S.  97.  [Butterfield  v.  Nogales  Copper  Co., 
9  Ariz.  212;  Stewart  f.  Douglass,  148  Cal.  511;  Sanford  v.  Sanford,  139  U. 
S.  642;  Walker  v.  Daly,  80  Wis.  222.] 

"  Hoge  V.  Hoge,  1  Watts,  213. 


(a)  Recent  decisions  show  a 
conflict  of  authority  upon  this  point. 
In  many  cases  it  has  been  held  that 
it  is  necessary  to  show  a  fraudulent 
intention  at  the  time  the  promise 
was  made;  that  is  to  say,  an  inten- 
tion not  to  perform  the  promise, 
BO  that  the  conveyance,  devise  or 
inheritance  can  be  said  to  have  been 
procured  by  fraud.  Patton  v.  Beech- 
er,  62  Ala.  579  (overruling  Barrell 
V.  Hanrick,  42  Ala.  60);  Manning 
V.  Pippen,  86  Ala.  357;  95  Ala.  537; 
Brock  V.  Brock,  90  Ala.  86;  Cassels 
V.  Finn,  122  Ga.  33,  106  Am.  St.  91; 
Orth  V.  Orth,  145  Ind.  184,  196; 
(semble);  Peterson  v.  Boswell,  137 
Ind.  211  (semble);  Gregory  r.  Bo wls- 
by,  115  Iowa,  327.  (See  126  Iowa, 
588);  Willis  v.  Robertson,  121  Iowa, 
380.  (Compare  with  Newis  v.  Top- 
fer,  121  Iowa,  433);  Heddleston 
V.  Stoner,  128  Iowa,  525;  Rogers  v. 
Richards,  67  Kan.  706  (semble); 
Randal  v.  Constans,  33  Minn.  329; 
Henderson  v.  Murray,  108  Minn; 
76  (semble);  Lovett  v.  Taylor,  54 
N.  J.  Eq.  311,  321  (semble);  Grove 
V.  Kase,  195  Pa.  St.  325  (semble); 
Braun  v.  First  German  E.  L.  Church, 
198  Pa.  St.  152  (semble);  Bedilian 
V.  Seaton,  3  Wall.  Jr.  279. 

The  weight  of  authority,  how- 
ever, is  to  the  effect  that  it  is  un- 
necessary    to     show     any     actual 

VOL.  I.  — 19 


fraudulent  intent  at  the  time  the 
promise  is  made  or  at  the  time 
the  title  vests  in  the  alleged  trustee, 
if  the  promise  was  the  main  induce- 
ment of  the  transfer  to  him  or  of 
the  ancestor's  failure  to  make  a 
deed  or  will  in  favor  of  the  intended 
beneficiary.  Some  of  the  decisions 
are  based  upon  the  theory  that 
fraud  at  the  time  of  making  the 
promise  will  be  inferred  from  failure 
to  perform  it  subsequently.  Larmon 
V.  Knight,  140  111.  232;  Gemmel  v. 
Fletcher,  76  Kan.  577;  Koefoed  v. 
Thompson,  73  Neb.  128;  Pollard 
V.  McKenney,  69  Neb.  742;  Grove 
V.  Kase,  195  Pa.  St.  325.  But  most 
of  the  cases  go  to  the  extent  of  hold- 
ing that  the  fraud  lies  in  failure  to 
carry  out  the  parol  agreement  made 
under  such  circumstances,  even 
if  the  agreement  was  made  with  an 
honest  intention  of  performing  it. 
Odell  V.  Moss,  137  Cal.  542;  Jones 
V.  Jones,  140  Cal.  587;  Alaniz  v. 
Casenave,  91  Cal.  41;  Kimball 
V.  Tripp,  136  Cal.  631;  Feeney 
V.  Howard,  79  Cal.  525;  Curdy  «•. 
Berton,  79  Cal.  420;  Jerome  v. 
Bohm,  21  Colo.  322;  Bohm  v.  Bohm, 
9  Colo.  100;  Stahl  v.  Stahl,  214  111. 
131;  Giffen  v.  Taylor,  139  Ind.  573; 
Ransdel  v.  Moore,  153  Ind.  393; 
Grant  t-.  Bradstreet,  87  Me.  583; 
Gilpatrick  v.  Glidden,  81  Me.  137; 

289 


§  181. 


CONSTRUCTIVE   TRUSTS. 


[chap.  VI. 


land  and  engaged  the  defendant  to  find  some  one  who  would 
lend  the  plaintiff  the  necessary  money,  and  the  defendant  dis- 


Collins  V.  Collins,  98  Md.  473  (sem- 
ble);  Ragsdale  v.  Ragsdale,  68  Miss. 
92;  Benbrook  v.  Yancy,  51  So.  461 
(Miss.  1910);  Smullin  v.  Wharton, 
73  Neb.  667  and  690;  Powell  v. 
Yearance,  73  N.  J.  Eq.  117;  Ahrens 
V.  Jones,  169  N.  Y.  555;  Goldsmith 
V.  Goldsmith,  145  N.  Y.  313; 
McCloskey  v.  McCloskey,  205  Pa. 
St.  491  (semble);  Gore  v.  Clarke, 
37  S.  C.  537  (semble);  Stone  v. 
Manning,  103  Tenn.  232.  See  also 
note  to  Cassels  v.  Finn,  106  Am.  St. 
Rep.  91 ;  Olliffe  v.  Wells,  130  Mass. 
221.  But  see  Grossman  v.  Keister, 
223  111.  69. 

The  theory  of  the  best  considered 
of  these  cases  seems  to  be  that  the 
parol  agreement  which  is  relied  upon 
by  the  grantor,  testator  or  ancestor 
imposes  a  conscientious  obligation 
upon  the  promissor,  a  violation  of 
which  for  his  advantage  is  such 
fraud  that  equity  will  make  him  a 
constructive  trustee  for  the  intended 
beneficiary  in  order  to  prevent  the 
provisions  of  the  statute  of  frauds 
or  the  statute  of  wills  from  being 
made  an  instrument  of  fraud.  The 
doctrine  is  thus  expounded  in  a 
dictum  by  Chief  Justice  Gray  in 
Olliffe  V.  Wells,  130  Mass.  221,  225: 
"Where  a  trust  not  declared  in  the 
will  is  established  by  a  court  of 
chancery  against  the  devisee,  it  is 
by  reason  of  the  obligation  resting 
upon  the  conscience  of  the  devisee, 
and  not  a  valid  testamentary  dis- 
position by  the  deceased.  Where 
the  bequest  is  outright  upon  its  face, 
the  setting  up  of  a  trust,  while  it 
diminishes  the  right  of  the  devisee, 
does  not  impair  any  right  of  the 

290 


heirs  or  next  of  kin,  in  any  aspect 
of  the  case;  for  if  the  trust  were  not 
set  up,  the  whole  property  would  go 
to  the  devisee  by  force  of  the  devise ; 
if  the  trust  set  up  is  a  lawful  one, 
it  inures  to  the  benefit  of  the  ccsiuis 
que  trust;  and  if  the  trust  set  up  is 
unlawful,  the  heirs  or  next  of  kin 
take  by  way  of  resulting  trust." 
In  Powell  V.  Yearance,  73  N.  J.  Eq. 
117,  it  is  said  that  such  a  trust  "is 
not  based  necessarily  on  any  im- 
putation of  fraud,  or  intention  to 
defraud,  at  the  time  of  making  the 
promise,  but  of  afterwards  holding, 
or  attempting  to  hold,  the  estate, 
as  if  the  promise,  on  which  the 
estate  was  received  in  its  original 
condition,  had  not  been  made. 
The  fraud  consists  in  holding,  or 
attempting  to  hold,  the  estate  free 
from  the  effect  or  obligation  of  a 
promise,  subject  to  which  it  was 
intended  to  be  devised  and  received, 
and  which  it  is  obligatory  in  con- 
science to  carry  out." 

In  Heinisch  v.  Pennington,  73 
N.  J.  Eq.  456,  it  was  said:  "The 
sole  equitable  basis  of  depriving  a 
legatee  or  devisee  of  the  full  pro- 
tection of  the  statute  of  wills  is  that 
by  reason  of  a  promise  to  the  testator 
made  by  the  legatee  or  the  person 
through  whom  the  legacy  was  given 
the  testator  was  induced  to  make, 
or  leave  unaltered,  the  legacy  or 
devise,  and  the  equitable  remedy 
for  the  purpose  of  preventing  the 
statute  of  wills  from  becoming  a 
means  of  fraud  is  that  of  impressing 
the  property  received  by  the  legatee 
under  the  will,  with  a  trust  arising 
ex    maleficio    and     converting    the 


CHAP.  VI. 


ACTS    PREVENTED    BY   FRAUD. 


[§  181. 


suaded  the  plaintiff  from  seeking  the  money  in  other  directions, 
in  consequence  of  which  the  plaintiff  did  to  some  extent  abstain 


legatee,  as  a  holder  of  property  be- 
queathed, into  a  trustee."  See  also 
Gilpatrick  i;.  GHdden,  81  Me.  137; 
McCIoskey  i'.  McCloskey,  205  Pa.  St. 
491 ;  20  Harvard  Law  Rev.  403,  412. 
Some  of  the  derisions  which  hold 
this  view  lay  stress  upon  the  rela- 
tion of  trust  and  confidence  occu- 
pied by  the  constructive  trustee 
by  reason  of  other  circumstances 
than  his  parol  agreement,  such  as 
the  near  relationship  of  husband  and 
wife,  parent  and  child  or  brother 
and  sister.  Feeney  v.  Howard,  79 
Cal.  525;  Jones  v.  Jones,  140  Cal. 
587;  Ransdel  v.  Moore,  153  Ind. 
393;  Goldsmith  v.  Goldsmith,  145 
N.  Y.  313;  Kimball  i;.  Tripp,  136 
Cal.  631;  Bohm  v.  Bohm,  9  Colo 
100;  Stahl  v.  Stahl,  214  111.  131 
Koefoed  v.  Thompson,  73  Neb 
128;  Lamb  v.  Lamb,  18  N.  Y.  App 
Div.  250,  46  N.  Y.  S.  219;  Hutchin- 
son V.  Hutchinson,  84  Hun,  482; 
Cardiff  v.  Marquis,  114  N.  W.  1088 
(N.  D.  1908);  Hanson  v.  Svarver- 
ud,  120  N.  W.  550  (N.  D.  1909). 
See  also  Newis  v.  Topfer,  121  Iowa, 
433;  Vanbever  v.  Vanbever,  97  Ky. 
344;  Henderson t>.  Murray,  108  Minn. 
76.  But  it  would  seem  that  the  mere 
fact  that  reliance  upon  the  perform- 
ance of  the  unenforceable  agreement 
induced  the  transfer,  or  the  failure 
to  transfer,  is  sufficient  in  itself  to 
establish  a  conscientious  obligation, 
breach  of  which  amounts  to  fraud. 
See  Amherst  College  v.  Ritch,  151 
N.  Y.  282;  O'Hara  v.  Dudley,  95 
N.  Y.  403;  Gore  v.  Clarke,  37  S.  C. 
537;  Powell  v.  Yearance,  73  N.  J. 
Eq.  117;  Goodwin  v.  McMinn,  193 
Pa.  St.  646. 


Other  cases  have  taken  the  view 
that  equity  will  not  impose  a  trust 
because  of  breach  of  an  oral  agree- 
ment in  such  cases,  unless  the  al- 
leged trustee  was  active  in  procuring 
the  conveyance  or  devise  or  in  in- 
ducing the  ancestor  not  to  make 
a  will.  McCloskey  v.  McCloskey, 
205  Pa.  St.  491;  Orth  v.  Orth,  145 
Ind.  184,  196;  Ragsdale  v.  Ragsdale, 
68  Miss.  92.  But  the  better  opinion 
seems  to  be  that  proof  that  the  for- 
mer owner  of  the  propert}'  actually 
relied  upon  the  agreement  and 
would  not  have  conveyed  or  devised 
the  property  or  allowed  it  to  descend 
to  the  promissor  except  for  his 
promise,  is  sufficient  foundation  for 
the  trust.  Gilpatrick  v.  Glidden, 
81  Me.  137. 

As  the  constructive  trust  in  such 
cases  is  based  upon  the  fact  that 
property  has  been  acquired  by  means 
of  a  promise  or  representation,  no 
trust  will  be  raised  unless  the  fraudu- 
lent person  has  actually  acquired 
property  which  he  would  not  have 
acquired  except  for  his  promise. 
Loomis  V.  Loomis,  148  Cal.  149; 
Verzier  v.  Convard,  75  Conn.  1; 
Robinson  I'.  Denson,  3  Head  (Tenn.) 
395.  Likewise  there  can  be  no 
constructive  trust  where  the  person 
who  gets  the  property  is  not  party 
to  any  agreement  or  understand- 
ing, however  much  confidence  the 
grantor,  testator  or  ancestor  may 
have  had  that  such  person  would 
carry  out  his  wishes,  and  however 
clearly  his  wishes  may  be  exprcf^sed. 
Fairchild  v.  Edson,  154  N.  Y.  199 
Sale  V.  Thornberry,  86  Ky.  266 
Hodnett's  Estate,  154  Pa.  St.  485 

291 


§  181.] 


CONSTRUCTIVE   TRUSTS. 


[chap.  VI. 


from  trying  to  get  the  funds  elsewhere,  and  the  defendant 
bought  the  land  on  his  own  behalf  with  his  own  money  and 


Shultz's  Appeal,  80  Pa.  St.  396; 
Whitehouse  v.  Bolster,  95  Me.  458; 
Flood  V.  Ryan,  220  Pa.  St.  450; 
Patten  v.  Warner,  11  App.  D.  C 
149,  161.  See  also  McCloskey  v. 
McCloskey,  205  Pa.  St.  491.  As  to 
the  effect  of  precatory  words  in  a 
will  see  supra,  §  112,  and  note. 

The  promise,  however,  need  not 
be  an  express  one,  but  may  be  in- 
ferred from  conduct  which  must  have 
induced  the  belief  of  the  grantor, 
testator  or  ancestor  that  his  ex- 
pressed wishes  would  be  carried  out. 
Mere  silence  may  be  sufficient. 
Becker  v.  Schwerdtle,  141  Cal.  386; 
Curdy  v.  Berton,  79  Cal.  420;  Gil- 
patrick  v.  Glidden,  81  Me.  137; 
O'Hara  v.  Dudley,  95  N.  Y.  403; 
Amherst  College  v.  Ritch,  151  N.  Y. 
282;  Brook  v.  Chappell,  34  Wis. 
405.  But  see  McCloskey  v.  Mc- 
Closkey, 205  Pa.  St.  491.  See  also 
Orth  V.  Orth,  145  Ind.  184, 196.  Thus 
where  a  husband  devised  property 
to  his  wife  with  the  "request "  that 
if  she  married  again  she  would  see 
that  the  interests  of  his  children  in 
the  property  were  protected,  a 
disregard  of  the  request  would  not 
raise  a  constructive  trust,  there 
having  been  no  agreement  or  under- 
standing to  which  the  wife  was  a 
party,  that  the  testator's  request 
would  be  carried  out.  Sale  v.  Thorn- 
berry,  86  Ky.  266.  But  where  a 
testator  left  property  to  three  per- 
sons absolutely  so  far  as  appeared 
in  the  will,  but  in  a  letter,  written 
and  delivered  to  them  contempo- 
raneously with  the  making  of  the 
will,  gave  them  certain  instructions 
for   the    use   of    the    property    for 

292 


charitable  purposes,  and  their  con- 
duct had  been  such  as  to  induce  the 
testator  to  believe  that  they  would 
carry  out  his  instructions,  they 
were  not  allowed  to  take  the  bequest 
as  an  absolute  one.  O'Hara  v. 
Dudley,  95  N.  Y.  403.  See  also 
Amherst  College  v.  Ritch,  151  N.  Y. 
282. 

When  the  agreement  of  the 
devisee  or  legatee  which  was  the 
inducement  of  the  devise  or  bequest, 
was  to  devote  the  property  to  cer- 
tain uses  for  which  a  trust  cannot 
legally  be  created;  that  is  to  say, 
when  the  parol  trust  if  properly 
declared  would  have  been  void,  the 
devisee  or  legatee  will  neither  be 
ordered  nor  be  permitted  to  carry 
out  his  agreement.  On  the  other 
hand  he  will  not  be  permitted  to 
hold  the  property  as  an  absolute 
gift,  but  a  resulting  trust  for  the 
heirs  or  next  of  kin  will  be  decreed. 
O'Hara  v.  Dudley,  95  N.  Y.  403; 
Amherst  College  v.  Ritch,  151  N. 
Y.  282;  Gore  v.  Clarke,  37  S.  C. 
537;  Edson  v.  Bartow,  154  N.  Y. 
215.  See  OUiffe  v.  Wells,  130  Mass. 
221,  225:  —  "If  the  trust  set  up  is  a 
lawful  one,  it  inures  to  the  benefit 
of  the  cestuis  que  trust;  and  if  the 
trust  set  up  is  unlawful,  the  heirs 
or  next  of  kin  take  by  way  of  result- 
ing trust."  See  Moran  v.  Moran, 
104  Iowa,  216. 

In  one  or  two  cases  where  a 
conveyance  of  real  estate  has  been 
obtained  by  a  parol  agreement  to 
hold  for  the  benefit  of  another  and 
the  parol  agreement  has  been 
repudiated,  it  has  been  suggested 
that  the  property  must  be  restored 


CHAP.  VI.J 


ACTS  PREVENTED  BY  FRAUD. 


l§  181. 


took  a  deed  to  himself,  it  was  held  that  the  defendant  was  not 
a  trustee  for  the  plaintifi"  either  on  the  ground  of  agency  or 
fraud.  Judge  Holmes  said:  "In  any  view  of  the  law,  before  we 
can  convert  a  man  into  a  trustee,  on  the  ground  of  fraud,  we 
must  be  able  to  see  with  some  reasonable  certainty  that  his 
fraud  was  the  means  of  depriving  the  plaintiff  of  the  property 
he  seeks  to  follow,"  and  in  this  case  he  did  not  deem  it  probable 
that  such  was  the  consequence  of  the  defendant's  fraudulent 
concealment  of  his  intent  to  buy,  and  of  his  dissuasions.^  We 
think  this  decision  is  open  to  severe  criticism.  Such  fraudu- 
lent conduct  should  be  repressed  with  a  strong  hand,  the  pre- 
sumption should  be  against  the  evil  doer  so  strongly  as  to  cut 
off  the  chance  of  his  gaining  an  advantage  by  his  own  wrong  or 
keeping  it  if  gained,  (a)     If  an  heir  fraudulently,  or  through 

•  Collins  V.  Sullivan,  135  Mass.  461,  463. 


to  the  grantor  for  failure  of  con- 
sideration of  the  transfer.  See 
Plandall  v.  Constans,  33  Minn.  329, 
338;  Thompson  v.  Marley,  102 
Mich.  476. 

(o)  Theft  and  felony  do  not 
prevent  the  felon  from  being  held  a 
trustee.  Nebraska  Nat.  Bank  v. 
Johnson,  51  Neb.  546;  Grouch  v. 
Hazlehurst  L.  Co.,  (Miss.)  16  So. 
Rep.  496;  Clifford  Bankmg  Co.  v. 
Donovan  Co.,  195  Mo.  262. 

It  has  been  held  in  New  York 
that  a  person  who  kills  another  to 
secure  thelatter's  property  by  descent 
or  devise,  or  to  prevent  the  revoca- 
tion of  his  will,  cannot  take  as  heir 
or  under  the  will,  on  the  ground  of 
public  policy.  Riggs  v.  Palmer,  115 
N.  Y.  506;  Ellerson  v.  Westcott, 
148  N.  Y.  149.  This  seems  to  be 
the  rule  in  England  likewise.  Clea- 
ver V.  Mutual  R.  V.  Life  Ass'n, 
[1892]  1  Q.  B.  147;  Lundy  r.  Lundy, 
24  Can.  Supr.  Ct.  650.     In  several 


decisions  in  other  jurisdictions  the 
contrary  has  been  held,  on  the 
ground  that  the  murder  cannot  alter 
the  will  or  the  law  of  descent.  Shel- 
lenberger  v.  Ransom,  41  Neb.  631; 
31  Neb.  61;  Owens  v.  Owens,  100 
N.  C.  240;  Carpenter's  Estate,  170 
Pa.  St.  203;  Deem  v.  ISIilUkin,  6 
Ohio  Cir.  Ct.  357.  In  an  article  in 
36  Am.  L.  Reg.  n.  s.  225,  Prof. 
J.  B.  Ames  points  out  a  method  of 
reaching  the  desirable  result  of  the 
New  York  and  English  decisions  with- 
outdeclaring  the  will  revoked  or  mak- 
ing an  exception  to  the  law  of  de- 
scent. He  argues  very  convincingly 
that  the  murderer  in  such  a  case 
should  be  held  to  take  the  legal 
title  but  to  hold  it  upon  a  construc- 
tive trust  for  his  victim's  heirs  or 
next  of  kin,  other  than  himself,  on 
the  ground  that  the  propertj'  might 
not  have  come  to  him  except  for 
crime. 

A  somewhat  similar  case  in  New 

293 


§   181.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

ignorance,  procure  a  will  to  be  revoked,  so  that  the  estate 
comes  to  him,  he  will  be  a  trustee;  as,  where  A.  had  sold  a 
part  of  his  estate,  and  the  purchaser  desired  a  fine  to  be  levied, 
B.,  his  heir,  acting  as  his  attorney,  advised  a  fine  to  be  levied 
of  his  whole  estate,  whereby  A.'s  will  was  revoked,  and  the 
estate  descended  to  B.;  the  devisee  under  the  will  called  upon 
B.  to  hold  the  property  as  his  trustee,  and  he  was  so  held  by 
the  court;  Lord  Eldon  saying,  "You,  who  have  been  wanting 
in  what  I  conceive  to  be  the  duty  of  an  attorney,  if  it  happens 
that  you  get  an  advantage  by  that  neglect,  you  shall  not  hold 
that  advantage,  but  you  shall  be  trustee  of  the  property  for 
the  benefit  of  that  person  who  would  have  been  entitled  to  it 
if  you  had  known  what,  as  an  attorney,  you  ought  to  have 
known,  and,  not  knowing  it,  you  shall  not  take  advantage  of 
your  own  ignorance."  ^  In  such  cases  it  has  been  held  that  mere 
promises  are  not  enough,  that  there  must  be  some  proof  of  a 
fraudulent  intent  or  purpose  to  create  a  trust;  it  is  also  held 
that  such  trust  does  not  follow  the  property,  but  is  only  an 
agreement  which  equity  will  enforce.^ 


1  Bulkley  v.  Wilford,  2  CI.  &  Fin.  177;  8  Bligh.  (n.  s.),  11;  Segrave  v. 
Kirwan,  Beat.  157;  Nanney  v.  Williams,  22  Beav.  452.  See  Mix  r.  King, 
55  111.  434. 

*  Bedilian  v.  Seaton,  3  Wall.  Jr.  280.    [See  note  (a),  supra,  p.  289  et  seq.] 


York,  Piper  v.  Hoard,  107  N.  Y.  73,  Where    the    assignee    of    a    life 

seems  to  support  such  a  view.     In  insurance     policy    has    feloniously 

that  case  property  had  been  left  to  F.  caused  the  death  of  the  insured,  it 

and  his  heirs  subject  to  the  limita-  has  been  held  that  his  conduct  has 

tion  that  it  should  go  to  J.  and  his  shut  him  out  from  recovering  from 

heirs  in  case  F.  should  die  without  the    insurance    company.      N.    Y. 

issue.      H.    having    purchased    F.'s  Mut.   Life  Ins.   Co.  v.   Armstrong, 

entire  interest,  induced  a  woman  to  117   U.  S.    591.     But   it  has  been 

marry  F.  by  representing  that  F.  held    otherwise    where    au    insane 

owned    this   property    and    that    it  beneficiary  has  killed  the  insured, 

would    descend    to    his    heirs.      An  Holdom     v.    A.    O.     L.    W.,    159 

heir  having  been  bom  as  a  result  111.     619.       See     also     Cleaver    v. 

of  this  marriage  and  F.  having  died,  Mut.   R.   F.   Life    Ass'n,    [1892]    1 

H.  was  decreed  to  be  a  constructive  Q.  B.  147. 
trustee  for  the  heir. 

294 


CHAP.  VI.]  ACTS    PREVENTED    BY    FRAUD.  [§   182. 

§182.  While  a  court  of  equity  will  thus  create  a  trust  where 
a  person  has  by  fraud  prevented  a  will  from  being  made  in 
favor  of  another,  it  has  no  jurisdiction  to  prevent  the  probate 
of,  or  to  set  aside,  a  will  fraudulently  procured.  Ecclesiastical 
and  common-law  courts  in  England,  and  probate  courts  with 
the  common-law  courts  in  the  United  States,  alone  have  juri.s- 
diction  over  wills.  Thus,  until  within  a  short  period  all  wills 
in  England  were  first  presented  to  the  ecclesiastical  courts,  and 
they  were  there  allowed  or  disallowed  according  to  the  evidence. 
If  they  were  allowed,  the  final  judgment  allowing  them  was 
conclusive  upon  the  personalty  until  such  judgment  was 
reversed  or  annulled.  The  validity  of  such  will,  however,  so  far 
as  real  estate  was  concerned,  was  tried  in  the  courts  of  common 
law  as  often  as  the  title  to  the  separate  parcels  of  land  was  in 
controversy.  Whenever  in  the  prosecution  or  defence  of  a  real 
action  such  will  of  real  estate  was  given  in  evidence,  not  only 
its  execution  was  tried,  but  its  validity,  as  whether  it  was  ob- 
tained by  undue  influence  or  fraud,  or  whether  the  testator 
was  of  sound  mind.  Courts  of  equity  in  a  few  early  cases 
assumed  jurisdiction  to  set  aside  wills  procured  bj-  fraud,'  but 
it  is  now  well  settled  that  they  will  not  interfere,  but  that  courts 
of  common  law  have  exclusive  jurisdiction;  nor  will  they  inter- 
fere to  set  aside  the  judgment  or  probate  of  a  will  procured  by 
fraud.^  To  set  aside  such  a  judgment,  proceedings  must  be 
had  in  the  nature  of  proceedings  for  a  new  trial  in  the  court  in 
which  such  judgment  or  decree  w^as  passed.^     The  extent  to 

•  Maundy  t-.  Maundy,  1  Ch.  R.  66;  Well  v.  Thornagh,  Pr.  Ch.  123;  Goss 
V.  Tracy,  1  P.  Wms.  287;  2  Vern.  700. 

^  Roberts  v.  Wynne,  1  Ch.  R.  125;  Herbert  v.  Lownes,  id.  13;  Archer 
V.  Mosse,  2  Vern.  8;  Thynn  v.  Thynn,  1  Vern.  296;  Denevish  v.  Baines,  1 
Pr.  Ch.  3;  Bamesley  v.  Powell,  1  Ves.  287;  Marriott  v.  Marriott,  Str.  666; 
Plume  V.  Beale,  1  P.  Wms.  388;  Rockwood  v.  Rockwood,  1  Leon.  192;  Cro. 
Ehz.  163;  Button  v.  Poole,  1  Vent.  318;  Beringer  v.  Beringer,  26  Car.  II.; 
Chamberlain  v.  Chamberlain,  2  Freem.  34;  Leicester  v.  Foxcroft,  Gilb.  11; 
Ketrick  V.  Barnsby,  3  Bro.  P.  C.  358;  Webb  v.  Claverden,  2  Atk.  424;  Ben- 
nett V.  Vade,  id.  324;  Anon.,  3  Atk.  17;  Sheffield  v.  Buckingham,  1  Atk. 
628;  Allen  v.  Macpherson,  5  Beav.  469;  1  Phill.  133;  1  H.  L.  Cas.  191;  Mur- 
ray V.  Murphy,  39  Miss.  214. 

'  Waters  v.  Stickney,  12  Allen,  1. 

295 


§    182.]  CONSTRUCTIVE    TRUSTS.  [CIIAP.  VI. 

which  a  court  of  equity  will  go  in  correcting  a  fraud  perpe- 
trated in  relation  to  a  will,  is  to  give  relief  where  fraud  has 
prevented  a  will  from  being  made,  or  where  a  fraud  has  been 
practised  upon  the  legatee,  as  where  a  name  is  inserted  fraudu- 
lently in  a  will  in  place  of  the  intended  devisee  or  legatee,  or 
where  the  revocation  of  a  will  has  been  procured  or  prevented 
by  fraud,'  or  where  there  is  a  gift  to  executors  under  such  cir- 
cumstances that  it  ought  to  be  a  trust  for  relations,  or  where 
a  legatee  promises  the  testator  that  he  will  hand  over  the  legacy 
to  a  third  person."  In  all  these  cases  the  will  itself  is  established, 
but  certain  other  collateral  things  are  decreed  growing  out  of 
the  manner  in  which  the  will  was  procured.^  In  New  York,  New 
Jersey,  and  South  Carolina,  the  old  English  practice  is  followed, 
and  wills  must  be  proved  whenever  they  are  used  to  establish 
or  defeat  the  title  to  real  estate,  nor  has  a  court  of  equity  juris- 
diction to  set  them  aside.  This  rule  has  been  modified  in  New 
York  so  far  that  when  the  title  of  real  estate  depends  upon  a 
will,  the  validity  of  which  is  doubted,  and  the  parties  are  not 
in  possession  of  the  real  estate,  nor  in  such  a  position  that  a 
real  action  can  be  brought,  or  if  there  is  any  technical  reason 
why  a  real  action  cannot  be  sustained,  a  court  of  equity  will 
take  jurisdiction  to  prevent  a  failure  of  justice.  In  nearly  all 
the  other  States  the  judgments  of  the  courts  of  probate  allowing 
a  will  are  conclusive  upon  all  the  world,  both  as  to  real  and 
personal  estate.  In  all  actions  at  law  involving  title  under 
such  wills,  it  is  only  necessary  to  produce  the  judgment  of  the 
probate  court  allowing  them.  Courts  of  equity  have  no  juris- 
diction to  set  aside  such  wills  for  fraud,  nor  can  they  set  aside 

1  Bulkley  v.  Wilford,  2  CI.  &  Fin.  177;  8  Bligh  (n.  s.)  11;  Segrave  v. 
Kirwan,  Beat.  157;  Nanney  v.  Williams,  22  Beav.  452;  Dowd  v.  Tucker, 
41  Conn.  198;  Williams  v.  Vreeland,  29  N.  J.  Eq.  417. 

»  Kennell  v.  Abbott,  4  Ves.  802;  Marriott  v.  Marriott,  Str.  666,  cited 
Gilbert,  203,  209;  Williams  v.  Fitch,  18  N.  Y.  546;  7  Sim.  644;  1  Watts,  163; 
Church  V.  Ruland,  64  Penn.  St.  432. 

*  Marriott  v.  Marriott,  Str.  &  Gil.  ut  supra.  [Sohler  v.  Sohler,  135  Cal. 
323;  Sumner  v.  Staton,  151  N.  C.  198.] 

*  Brady  v.  McCosker,  1  Comst.  214;  Clarke  v.  Sawyer,  2  id.  498. 

296 


CHAP.  VI.]  SUPPRESSION    OF   DEED    OR   WILL.  [§  18o. 

the  judgments  of  the  probate  court  allowing  them.^  If,  how- 
ever, a  will  is  probated  by  accident  or  mistake,  or  the  probate 
is  procured  by  fraud,  the  judgment  may  be  reversed  or  modified 
by  proceedings  in  the  same  court  in  the  nature  of  a  petition 
for  a  review  or  for  a  new  trial."  This,  however,  may  depend 
upon  the  statutes  of  the  several  States  giving  jurisdiction  to 
their  several  courts  of  probate.  While  courts  of  equity  will 
not  interfere  to  set  aside  wills  procured  by  fraud,  or  to  set 
aside  the  probate  of  those  procured  by  fraud,  they  will  not 
interfere  in  favor  of  the  fraudulent  party  to  enable  him  to 
establish  any  rights  under  the  will.^  As  a  general  rule  neither 
courts  of  equity  nor  of  common  law  will  take  notice  of  a  will 
for  any  purpose  unless  it  has  been  proved  in  the  courts  of 
probate  having  jurisdiction  over  such  matters.^ 

§  183.  Another  instance  of  a  constructive  trust  arising  from 
fraud  in  relation  to  deeds  or  wills,  is  where  a  party  has  suppressed 
or  destroyed  a  deed  or  other  instrument  of  title.  Every  one  is 
entitled  to  aid  from  the  judicial  tribunals  in  all  cases  of  fraud, 
and  if  a  defendant  has  fraudulently  suppressed  or  destroyed 
the  evidence  of  a  man's  title,  and  is  in  possession  of  the  prop- 
erty himself,  he  ought  to  be  declared  a  trustee  for  the  rightful 
owner  under  the  suppressed  paper ;^  and  if  a  deed  or  will  is 

1  Gould  V.  Gould,  3  Story,  516;  Fouvergne  v.  New  Orleans,  18  How. 
470;  Gaines  v.  Chew,  2  How.  645;  Tarver  v.  Tarvcr,  9  Pet.  180;  Adams 
V.  Adams,  22  Vt.  50;  Cotton  v.  Ross,  1  Paige,  396;  Muir  v.  Trustees,  3  Barb. 
Ch.  477;  Hamberlin  v.  Tenny,  7  How.  (Miss.)  143;  Lyne  v.  Guardian,  1 
Miss.  410;  Hunter's  Will,  6  Ohio,  499;  Watson  v.  Bothwell,  11  Ala.  653; 
Johnson  v.  Glasscock,  2  Ala.  233;  Hunt  v.  Hamilton,  9  Dana,  90; 
McDowall  V.  Peyton,  2  Des.  313;  Howell  v.  Whitchurch,  4  Heyw.  49;  Bur- 
rows V.  Ragland,  6  Humph.  481;  Blue  v.  Patterson,  1  Dev.  &  Bat.  Eq. 
459;  Trexler  i;.  Miller,  6  Ired.  Eq.  248. 

2  Waters  t-.  Stickney,  12  Allen,  1. 
'  Nelson  v.  Oldfield,  2  Vcrn.  76. 

'  Price  i;.  Dewhurst,  4  My.  &  Cr.  76,  80,  81 ;  Gaines  v.  Chew,  2  How. 
645,  646. 

*  Bates  V.  Heard,  Toth.  66;  1  Dick.  4;  Tucker  v.  Phipps,  3  Atk.  360; 
Hayne  v.  Hayne,  1  Dick.  18;  Eyton  v.  Eyton,  2  Vem.  280;  Pr.  Ch.  116;  Dal- 
eton  V.  Coatsworth,  1  P.  Wms.  731;  Woodroff  v.  Burton,  1  P.  Wms.  734; 

297 


§   184.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

destroyed  or  suppressed,  a  court  of  equity  can  give  relief. 
There  seems  to  be  no  difficulty  in  this  matter  so  far  as  relates 
to  deeds/  nor  so  far  as  relates  to  wills  of  real  estate  in  those 
jurisdictions  where  a  will  must  be  proved  in  court  in  every 
instance  where  it  is  necessary  to  the  title  of  real  estate;  but  in 
jurisdictions  where  a  will  cannot  be  noticed  by  other  courts 
until  it  is  first  proved  in  a  court  of  probate,  there  is  a  difficulty 
in  proceeding  in  equity  for  fraud  in  suppressing  it,  except  by  a 
bill  of  discovery  of  evidence  to  use  in  the  courts  of  probate  in 
proving  the  will.  Accordingly  it  has  been  determined  in  some 
States  that  a  will  cannot  be  acted  upon  in  courts  of  equity,  al- 
though lost,  destroyed,  or  suppressed,  until  it  is  first  proved 
in  a  probate  court.^  In  other  States,  courts  of  equity,  in  cases 
of  suppressed  or  spoliated  wills,  have  taken  jurisdiction  in 
odium  spoliatoris,  and  have  allowed  such  will  to  be  proved,  and 
have  carried  its  provisions  into  effect,  as  a  court  of  probate 
would  have  done  if  the  will  had  been  produced  and  regularly 
administered,^ 

§  184.  If  a  party  in  ignorance  and  mistake  of  his  rights  and 
interests  execute  a  conveyance,  although  no  fraud  is  practised 

Saltern  v.  Melhuish,  Amb.  249;  Cowper  v.  Cowper,  2  P.  Wms.  748;  Gartside 
V.  Radcliffe,  1  Ch.  Gas.  292;  Hunt  v.  Mathews,  1  Vera.  408;  Wardour  v. 
Beresford,  id.  452;  Downes  v.  Jennings,  32  Beav.  290;  Ransom  v.  Rumsey, 
2  Vera.  561;  1  P.  Wms.  733;  Hampden  v.  Hampden,  3  Bro.  P.  G.  550;  1  P. 
Wms.  733;  Spencer  v.  Smith,  1  N.  G.  G.  75;  Middleton  i;.  Middleton,  1  J. 

6  W.  99;  Wood  v.  Abrey,  3  Mod.  423;  Floyer  v.  Sherrard,  Amb.  18;  Goles 
V.  Trecothick,  9  Ves.  246;  Law  v.  Barchard,  8  Ves.  133;  Wliite  v.  Damon, 

7  Ves.  35;  Moth  v.  Atwood,  5  Ves  845;  Stephens  v.  Bateman,  1  Bro.  Gh.  22; 
Griffith  V.  Spratley,  2  id.  179. 

'  Ward  V.  Webber,  1  Wash.  (Va.)  274. 

*  Momingstar  v.  Selby,  15  Ohio,  345;  Gaines  v.  Ghew,  2  How.  345; 
Gaines  v.  Hennen,  24  How.  553. 

'  Bailey  v.  Stiles,  1  Green,  Gh.  220;  Allison  v.  Allison,  7  Dana,  90;  Legare 
V.  Ashe,  1  Bay,  464;  Meade  f.Langdon,  cited  22Vt.59;  Buchanan  f.  Matlock, 

8  Humph.  390.  In  New  York,  the  matter  is  regulated  by  statute,  and  courts 
of  equity  or  the  Supreme  Gourt  has  exclusive  jurisdiction  in  case  of  a  lost 
or  spoliated  will.  Bowen  v.  Idley,  6  Paige,  46;  Bulkley  v.  Redmond,  2 
Brad.  Sur.  281. 

298 


CHAP.  VI.]  IGNORANCE    AND   MISTAKE.  [§  181. 

upon  him,  a  court  of  equity  will  relieve  against  the  instrument; 
for  it  is  against  good  conscience  to  take  advantage  of  one's 
ignorance  to  obtain  his  property.^  Thus,  if  an  heir,  in  ig- 
norance of  the  value  of  his  inheritance,^  or  in  ignorance 
that  some  legacies  or  devises  had  lapsed,'  should  convey  hi.s 
interest  for  an  inadequate  consideration,  equity  would  convert 
the  purchaser  into  a  trustee.  And  if  the  purchaser  should 
have  full  knowledge,  or  should  stand  in  an}-  confidential  rela- 
tion, or  should  practise  the  slightest  art  to  mislead  or  conceal, 
the  equities  would  of  course  be  much  stronger  against  the  tians- 
action;*  but  these  circumstances  are  not  necessary  to  avoid  the 
conveyance,  for  relief  will  be  granted  where  both  parties  are 
in  a  mutual  state  of  ignorance,  or  are  laboring  under  the  same 
mistake.^  It  is  to  be  observed,  however,  that  the  ignorance  or 
mistake  which  entitles  a  party  to  relief  must  be  as  to  some 
matter  of  fact;  and  that  mistake  or  ignorance  of  the  law,  or  of 
the  consequences  that  will  follow  from  the  conveyance,  will  not 
entitle  a  party  to  relief.^  (a)    This  rule  is  established  by  reason 

»  Bingham  v.  Bingham,  1  Vas.  126;  Ramsden  v.  Hylton,  2  Ves.  394; 
Turner  v.  Turner,  2  Ch.  R.  81;  Dunnage  v.  White,  1  Swanst.  137;  Naylor 
V.  Wynch,  1  S.  &  S.  564;  Evans  v.  Llewellyn,  2  Bro.  Ch.  150;  1  Cox,  333: 
Gossmour  v.  Pigge,  8  Jur.  526;  McCarthy  v.  Decaix,  2  R.  &  M.  614;  Hu- 
guenin  v.  Baseley,  14  Ves.  273;  Hore  v.  Beecher,  12  Sim.  465;  Marshall  /•. 
Collett,  1  Y.  &  Col.  Exch.  238;  Midland  Great  Western  Ry.  i;.  Johnson. 
6  H.  L.  Cas.  811.    [Fry  v.  Lane,  40  Ch.  Div.  312.] 

2  Beard  v.  Campbell,  2  A.  K.  Marsh.  125;  Tyler  v.  Black,  13  How.  231. 

'  Pusey  V.  Desbouvrie,  3  P.  Wms.  316. 

*  Gossmour  v.  Pigge,  13  L.  J.  Ch.  322;  Tyler  v.  Black,  13  How.  231: 
McCarthy  v.  Decaix,  2  R.  &  M.  222;  Cocking  v.  Pratt,  1  Ves.  400. 

'  Ibid.;  Lansdowne  v.  Lansdowne,  2  J.  &  W.  205;  Mose.  364;  Willan  r. 
Willan,  16  Ves.  72. 

«  Marshall  v.  Collett,  1  Y.  «fe  C.  Exch.  238;  Midland  Great  Western  Ry. 
V.  Johnson,  6  H.  L.  Cas.  811;  Hunt  v.  Rousmaniere,  1  Pet.  1;  Brown  v. 
Ingham,  1  Bro.  Ch.  92;  PuUen  v.  Ready,  2  Atk.  591 ;  Magniac  v.  Thompson, 
2  Wall.  Jr.  209;  Campbell  v.  Carter,  14  111.  286;  Hall  v.  Read,  2  Barb.  Ch. 

(a)  In  Massachusetts,  if  by  mis-  a  court  of  equity  may  direct  such 

take  a  discharge  of  a  mortgage  is  discharge  to  be  cancelled  and  the 

taken  instead  of  an  assignment,  and  assignment  substituted.      Short   v. 

no  intervening  rights  are  affected,  Currier,  153  Mass.  182. 

299 


§  184.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

of  the  great  danger  of  abuse  that  would  arise  if  parties  were 
allowed  to  reclaim  their  property  upon  allegations  that  they 
were  ignorant  of  the  law,  or  mistook  the  consequences  of  their 
acts.'  Thus,  if  a  party  has  full  knowledge  of  all  the  facts,  and 
intends  to  do  the  acts  or  execute  the  instruments  in  question 
in  the  form  in  which  they  are  executed,  he  cannot  have  relief 
because  he  was  ignorant  of  or  mistook  the  law,  or  because  the 
consequences  which  legally  and  naturally  follow  from  the  tran- 
saction are  different  from  what  he  expected.^  But  if  there  is  a 
mistake  in  the  instrument  itself,  and  it  contains  what  was  not 
agreed  or  intended,  or  does  not  contain  all  that  was  agreed  and 
intended,  to  be  in  the  writing,  equity  will  give  relief.^  And  if 
are  there  any  other  ingredients  in  the  case,  as  if  there  is  joined 
to  a  party's  ignorance  or  mistake  of  the  law  some  practice 
upon  him  to  lead  him  into  the  bargain,^  or  if  the  other  party, 
knowing  his  ignorance  or  mistake,  still  suffers  him  to  go  on 
without  information,^  equity  will  give  relief.  If  there  are  any 
exceptions  to  the  rule  that  ignorance  or  mistake  of  the  law  is 
not  a  ground  for  relief,  they  are  few  in  number,  and  have  some- 
thing peculiar  in  their  character,  which  calls  in  other  elements 


503;  Brown  v.  Armistead,  6  Rand.  594;  Hinchman  v.  Emans,  Saxt.  100; 
Freeman  v.  Cook,  6  Ired.  Eq.  378;  Gunter  v.  Thomas,  1  Ired.  Eq.  199; 
Crofts  V.  Middleton,  2  K.  &  J.  194;  Wintermute  v.  Snyder,  2  Green,  Ch. 
498;  Farley  v.  Bryant,  32  Maine,  474;  Freeman  v.  Curtis,  51  id.  140;  Fer- 
gerson  v.  Fergerson,  1  Ga.  Dec.  135. 

*  Bilbie  v.  Lumley,  2  East,  472;  Lyon  v.  Richmond,  2  Johns.  Ch.  51; 
Shotwell  V.  Murray,  1  id.  512;  Storrs  v.  Barker,  6  id.  169;  Proctor  v.  Thrall, 
22  Vt.  262. 

2  Storrs  V.  Barker,  6  Johns.  Ch.  169;  Lyon  v.  Saunders,  23  Miss.  124; 
Shafer  v.  Davis,  13  111.  395;  Emmett  v.  Dewhirst,  8  Eng.  L.  &  Eq.  83;  Hunt 
V.  Rousmaniere,  1  Pet.  1;  Farley  v.  Bryant,  32  Maine,  474;  Freeman  v.  Cur- 
tis, 51  id.  140;  MeUish  v.  Robertson,  25  Vt.  608;  Gilbert  v.  Gilbert,  9  Barb. 
532;  Arthur  v.  Arthur,  10  Barb.  9. 

3  Heacock  v.  Fly,  14  Pa.  St.  541;  Larkins  v.  Biddle,  21  Ala.  256;  Wyche 
V.  Green,  11  Ga.  169;  16  Ga.  49;  Moser  v.  Lebenguth,  2  Rawle,  428;  Fitz- 
gerald V.  Peck,  4  Litt.  127. 

*  1  Story's  Eq.  Jur.  §  133. 

^  Cook  V.  Nathan,  16  Barb.  342  ;  Langstaffe  v.  Fenwick,  10  Ves. 
405. 

300 


CHAP.  VI.]  IGNORANCE    AND    MISTAKE.  [§  1& 

of  equity,  or  they  stand  upon  some  urgent  pressure  of  circum- 
stances.^ 

§  185.  When  a  conveyance  is  made  to  compromise  claims 
which  the  parties  deem  doubtful,^  and  especially  if  the  convey- 
ance has  for  its  object  the  settlement  of  family  controversies,^ 
courts  will  support  it  if  possible,  although  founded  in  ignorance 
or  mistake  of  facts,  as  well  as  of  law;  provided  no  fraud  has  been 
used  to  mislead  and  deceive  the  party  executing  the  conveyance.* 

§  186.  If  a  deed  is  drawn  by  accident  or  mistake  to  embrace 
property  not  intended  by  the  parties,  equity  will  construe  the 
grantee  to  be  a  trustee,  and  will  execute  the  trust  by  reforming 
the  deed  or  by  ordering  a  reconveyance.  It  would  be  against 
natural  right  to  allow  a  person  to  hold  property  which  he 
never  intended  to  buy,  and  which  has  come  to  him  by  such 

^  State  V.  Paup,  13  Ark.  135;  Hunt  v.  Rousmaniere,  1  Pet.  1;  1  Story's 
Eq.  Jur.  §§  116,  137. 

^  Brown  i-.  Pring,  1  Ves.  407;  Cann  v.  Cann,  1  P.  Wme.  727;  Nay  lor  v. 
Winch,  1  Sim.  &  S.  555;  Goodman  v.  Sayers,  2  J.  &  W.  263;  Pickering  v. 
Pickering,  2  Beav.  91;  Stewart  v.  Stewart,  6  CI.  &  Fin.  699;  Gibbons  v. 
Gaunt,  4  Ves.  849;  Neale  v.  Neale,  1  Keen,  672;  Att.  Gen.  v.  Boucherett, 
25  Beav.  116;  Wiles  v.  Greshon,  5  De  G.,  M.  &  G.  770;  Bradley  v.  Chase, 
22  Maine,  511 ;  Richardson  v.  Eyton,  15  Eng.  L.  &  Eq.  51 ;  2  De  G.,  M.  &  G. 
79. 

*  Currie  v.  Steele,  2  Sandf.  542;  Stone  v.  Godfrey,  27  Eng.  L.  &  Eq.  318; 

5  De  G.,  M.  &  G.  76;  Gordon  v.  Gordon,  3  Swanet.  463,  476;  Stockley  v. 
Stockley,  1  V.  &  B.  29;  Bellamy  v.  Sabine,  2  Phill.425;  Stapilton  t;.Stapilton, 
1  Atk.  10;  3  Lead.  Cas.  Eq.  684;  Cann  v.  Cann,  1  P.  Wms.  727;  Persse  t-. 
Persse,  1  West,  110;  7  CI.  &  Fin.  279;  Cory  v.  Cory,  1  Ves.  19;  Heap  v.  Tonge, 
7  Eng.  L.  &  Eq.  189;  9  Hare,  90;  Leonard  v.  Leonard,  2iBall  &  B.  171 ;  Dun- 
nage V.  White,  1  Swanst,  137;  Harvey  v.  Cook,  4  Russ.  34;  Jodrell  v.  Jodrell, 
9  Beav.  45;  Frank  v.  Frank,  1  Ch.  Cas.  84. 

*  Smith  V.  Pincombe,  10  Eng.  L.  &  Eq.  50;  3  Mac.  &  G.  653;  Groves  v. 
Perkins,  6  Sim.  576;  Hoge  v.  Hoge,  1  Watts,  163;  Dunnage  v.  White,  1 
Swanst.  137;  Evans  v.  Llewellyn,  1  Cox,  333;  2  Bro.  Ch.  150;  Townshend, 
V.  Stangroom,  6  Ves.  333;  Chesterfield  v.  Janssen,  2  Ves.  155;  Ormond  v. 
Hutchinson,  13  Ves.  51;  Henly  v.  Cook,  4  Russ.  34;  Stainton  v.  Carson  Co., 

6  Jur.  (n.  s.)  360;  Ashurst  v.  Mill,  7  Hare,  502;  Lawton  v.  Campion,  18 
Beav.  87;  Bennett  v.  Merriman,  6  Beav.  360;  Hogton  t;.  Hogton,  15  Beav. 
278;  11  Eng.  L.  &  Eq.  134. 

301 


§  187.]  CONSTRUCTIVE   TRUSTS.  [CHAP,  VI. 

mistake.^  If  by  a  mistake  of  a  third  party  land  is  deeded  to 
the  husband  instead  of  the  wife,  as  it  should  have  been  by  reason 
of  the  consideration  and  the  agreement,  the  husband  holds  in 
trust  for  her.-  But  courts  require  the  most  full  and  satisfactory 
proof  before  they  will  vary  by  parol  evidence  the  contract  be- 
tween the  parties,  as  written  and  signed  by  them,^  and  will  not 
give  relief  unless  the  mistake  is  common  to  both  parties,^  except 
the  case  is  such  that  the  parties  may  be  restored  to  their  original 
situation.^  But  fraud  on  one  party  and  mistake  on  the  side  of 
the  other  is  a  good  cause  for  setting  aside  a  transaction.^ 

§  187.  Lord  Hardwicke,  in  his  analysis  of  the  various  kinds 
of  fraud,  stated  one  species  to  be  "fraud  apparent  from  the 
intrinsic  value  and  subject  of  the  bargain,  such  as  no  man  in  his 
senses,  and  not  under  delusion,  would  make  on  the  one  hand, 
and  as  no  honest  or  fair  man  would  accept  on  the  other.  "^  The 
meaning  of  this  is,  that  fraud  may  be  proved  by  the  inadequacy 
of  the  consideration  paid  for  property  by  the  purchaser  on  the 
one  hand,^  or  the  consideration  may  be  so  extravagantly  large 
on  the  other,    as  to  show  that  the  purchaser  was  imposed 

»  Exeter  v.  Exeter,  3  M.  &  Cr.  321;  Lindo  v.  Lindo,  1  Beav.  496;  Rams- 
den  V.  Hylton,  2  Ves.  304;  Beaumont  v.  Bramley,  T.  &  R.  52;  Underbill 
V.  Horwood,  10  Ves.  225;  Canedy  v.  Marcy,  13  Gray,  373;  Brown  v.  Lam- 
phear,  35  Vt.  252;  Green  v.  Morris,  1  Beasley,  170;  Richardson  v.  Bleight, 
8  B.  Mon.  580;  Whaley  v.  Eliot,  1  A.  K.  Marsh.  343;  Belknap  v.  Scaley,  2 
Duer,  570;  Gray  v.  Woods,  4  Blackf.  432;  Peters  v.  Goodrich,  3  Conn.  146; 
Oliver  v.  Ins.  Co.,  2  Curtis,  277;  Tilton  v.  Tilton,  9  N.  H.  385;  Farley  v. 
Bryant,  32  Maine,  474;  Loss  v.  Obry,  22  N.  J.  Eq.  52.  [Cole  v.  Fickett, 
95  Me.  265.] 

*  Lide  i;.  Law,  27  Kans.  242. 

'  Sawyer  v.  Hovey,  3  Allen,  331;  Gillespie  v.  Moore,  2  Johns.  Ch.  585; 
Andrews  v.  Essex  Ins.  Co.,  3  Mason,  10;  1  Story's  Eq.  Jur.  §  157. 

*  Andrews  v.  Essex  Ins.  Co.,  3  Mason,  10;  Bradford  v.  Romney,  30 
Beav.  431. 

*  Garrard  v.  Fankell,  30  Beav.  445;  Harris  v.  Pepperell,  L.  R.  5  Eq.  1. 

*  Bloodgood  V.  Sears,  64  Barb.  76;  Welles  v.  Yates,  44  N.  Y.  525. 

*  Chesterfield  v.  Janssen,  2  Ves.  155;  Harvey  v.  Mount,  8  Beav.  439. 

*  Ibid.;  Rosevelt  v.  Fulton,  2  Cow.  129;  McDonald  v.  Neilson,  2  Cow. 
139. 

»  CockcU  V.  Taylor,  15  Beav.  103. 

302 


CHAP.  VI.]  INADEQUACY    OF    CONSIDERATION.  [§  187. 

upon.  It  is  to  be  observed,  however,  that  the  consideration 
alone,  whether  too  large  or  too  small,  cannot  of  itself  prove 
fraud  in  a  transaction,  for  the  reason  that  a  mere  voluntary 
conveyance,  without  any  c-onsideration,  is  good  and  valid 
between  the  parties.  On  the  same  ground  mere  inadequacy  of 
consideration  will  not  vitiate  a  deed,^  and  so  if  a  party,  knowing 
that  the  consideration  is  inadequate,  enters  into  the  agreement 
with  his  eyes  open,  he  cannot  have  relief.-  It  is  only  where 
some  fraud  is  practised  upon  a  party  that  the  consideration  of 
a  conveyance  is  material.^  If  it  appears  that  a  person  intended 
to  convey  his  property  for  a  consideration  reasonably  propor- 
tionate to  its  value,  but  that  in  fact  the  consideration  received 
was  grossly  inadequate,  then  a  court  of  equity  would  infer  that 
some  fraud  or  deceit  had  been  practised  upon  him ;  *  or,  as  Lord 
Thurlow  said,  "  where  the  inadequacy  of  the  consideration  is  so 
gross  and  manifest  that  it  is  impossible  to  state  it  to  a  man  of 
common  sense  without  producing  an  exclamation  at  the  ine- 
quality of  it,^  the  court  will  infer  from  that  fact  alone,  that 

'  Pickett  V.  Loggon,  14  Ves.  215;  Reynell  v.  Sprye,  8  Hare,  222;  1  De 
G.,  M.  &  G.  600;  Howard  v.  Edgell,  17  Vt.  9;  Osgood  v.  Franklin,  2  Johns. 
Ch.  1;  14  Johns.  527;  Butler  v.  Haskell,  4  Des.  651;  Errsin  v.  Perham,  12 
How.  197;  Judge  v.  Wilkins,  19  Ala.  765;  McCormick  v.  Malin,  5  Blackf. 
509;  Delafield  v.  Anderson,  7  S.  &  M.  630;  Farmers  Bank  v.  Douglass,  11 
S.  &  M.  469;  Robinson  v.  Robinson,  4  Md.  Ch.  183;  Powers  v.  Hale,  5  Foster, 
145;  Dun  v.  Chambers,  4  Barb.  376;  Mann  v.  Betterly,  21  Vt.  326;  Green  v. 
Thompson,  2  Ired.  Eq.  365;  White  v.  Flora,  2  Overt.  426;  Forde  v.  Herron, 
4  Munf.  316;  Holmes  v.  Fresh,  9  Miss.  201;  Young  t;.  Frost,  5  Gill,  287; 
Coster  V.  Griswold,  4  Edw.  364;  Westervelt  v.  Matheson,  1  Hoff.  37;  David- 
son V.  Little,  27  Penn.  St.  251;  Coles  v.  Trecothick,  9  Ves.  246;  Moth  «;. 
Atwood,  5  Ves.  845;  White  v.  Damon,  7  Ves.  35;  Low  v.  Barchard,  8  Ves. 
133;  Griffith  v.  Spratley,  2  Bro.  Ch.  179;  Stephens  v.  Bateman,  1  id.  22; 
Wood  V.  Abrey,  3  Madd.  423;  Floyer  v.  Sherrard,  Amb.  18;  Harrison  v. 
Guest,  6  De  G.,  M.  &  G.  424;  8  H.  L.  Cas.  481 ;  Denton  v.  Donner,  23  Beav. 
285;  Eyre  v.  Potter,  15  How.  60;  Chaires  v.  Brady,  10  Fla.  133. 

2  Willis  V.  Jemegan,  2  Atk.  251. 

'  Huguenin  v.  Baseley,  14  Ves.  273;  Wormack  i-.  Rogers,  9  Ga.  60;  How 
V.  Weldon,  2  Ves.  516;  Mann  v.  Betterly,  21  Vt.  326. 

*  Gwynne  v.  Heaton,  1  Bro.  Ch.  8;  Baugh  v.  Price,  3  Wilson,  320;  Eyre 
p.  Potter,  15  How.  60;  Butler  v.  Haskell,  4  Des.  652;  Bamett  v.  Spratt,  4 
Ired.  Eq.  171;  Wright  v.  Wilson,  4  Yerg.  294;  Juzan  r.  Toulmin,  9  Ala.  692. 

*  Gwynne  v.  Heaton,  1  Bro.  Ch.  8;  Hamet  t-.  Dundass,  4  Barr,  178. 

303 


§  187.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

there  must  have  been  such  imposition  or  oppression  in  the 
transaction,  or  such  a  want  of  common  understanding  in  the 
party,  as  to  amount  to  a  case  of  fraud,  from  which  no  advantage 
or  benefit  ought  to  be  derived  by  the  other  party."  ^  Other 
authorities  say  that  courts  will  act  on  the  fact  alone  of  inade- 
quacy of  consideration  when  it  is  so  gross  and  manifest  as  to 
shock  the  conscience.-  This  principle  is  loose  enough,^  if  it  is  a 
principle,  and  of  course  every  case  would  depend  upon  its  own 
facts  and  circumstances.  Where  there  are  suspicious  circum- 
stances connected  with  the  fact  of  inadequacy  of  price,  as  where 
the  parties  stand  in  a  fiduciary  relation  to  each  other,^  or  one 
of  them  is  in  distress,^  or  is  ignorant,®  or  is  weak-minded  and 
imbecile,^  inadequacy  of  consideration  will  become  very  perti- 
nent, and  oftentimes  conclusive  evidence  that  fraud  and  undue 

*  Heathcote  v.  Paignon,  2  Bro.  Ch.  175;  Underbill  v.  Horwood,  10  Ves. 
219;  Ware  v.  Horwood,  14  Ves.  28;  Stilwell  v.  WilkinBon,  Jac.  282;  Barnett 
V.  Spratt,  4  Ired.  Eq.  171. 

2  Horsey  v.  Hough,  38  Md.  130;  Coles  v.  Trecothick,  9  Ves.  246;  Osgood 
V.  Franklin,  2  Johns.  Ch.  1;  14  Johns.  527;  Gwynne  v.  Heaton,  1  Bro.  Ch. 
9;  Underhill  v.  Horwood,  10  Ves.  209;  Peacock  v.  Evans,  16  Ves.  512;  Wright 
V.  Wilson,  2  Yerg.  294;  Deaderick  v.  Watkins,  8  Humph.  520;  Stilwell  v.  Wil- 
kinson, Jac.  280;  Copis  v.  Middleton,  2  Madd.  409;  Howard  v.  Edgell,  17 
Vt.  9;  Butler  v.  Haskell,  4  Des.  652;  Eyre  v.  Potter,  15  How.  60;  Gist  v. 
Frazier,  2  Litt.  118;  Seymour  v.  Delancy,  6  Johns.  Ch.  222;  Juzan  v.  Toul- 
min,  9  Ala.  692;  James  v.  Morgan,  1  Lev.  Ill;  Rice  v.  Gordon,  11  Beav. 
215;  Booker  v.  Anderson,  35  111.  66. 

»  Gibson  v.  Jeyes,  6  Ves.  273;  Warfield  v.  Ross,  38  Md.  85. 

*  Heme  v.  Meeres,  1  Vern.  456;  Gibson  v.  Jeyes,  6  Ves.  266;  Shaeffer 
V.  Sleade,  7  Blackf.  178;  Brooke  v.  Berry,  2  Gill,  83;  Wright  t;.  Wilson,  2 
Yerg.  294;  Butler  v.  Haskell,  4  Des.  680. 

«  Cockell  V.  Taylor,  15  Beav.  103;  Warfield  v.  Ross,  38  Md.  85. 

'  Heme  v.  Meeres,  1  Vern.  456;  Pickett  v.  Loggon,  14  Ves.  215;  Mur- 
ray V.  Palmer,  2  Sch.  &  Lef.  477;  Gwynne  v.  Heaton,  1  Bro.  Ch.  1;  Wood 
V.  Abrey,  3  Madd.  417;  McKinney  v.  Pinkard,  2  Leigh,  149;  Gasque  v. 
Small,  2  Strob.  Eq.  72;  Esham  v.  Lamar,  10  B.  Mon.  43;  Butler  v.  Haskell, 
4  Des.  680;  Cookson  v.  Richardson,  69  111.  137. 

^  Clarkson  v.  Han  way,  2  P.  Wms.  203;  Gartdde  v.  Isherwood,  1  Bro. 
Ch.  558;  Stanhope  v.  Toppe,  2  Bro.  P.  C.  183;  McArtee  v.  Engart,  13  111. 
242;  Wormack  v.  Rogers,  9  Ga.  60;  How  v.  Weldon,  3  Ves.  517;  Addis  v. 
Campbell,  4  Beav.  401;  Holden  v.  Crawford,  1  Atk.  390;  Mann  v.  Betterley^ 
21  Vt.  326;  Crane  v.  Conklin,  Saxt.  346;  Brooke  v.  Berry,  2  Gill,  83;  Rumph 
V.  Abercrombie,  12  Ala.  64. 

304 


CHAP.  VI.]  CONTRACTS   WITH    HEIRS.  [§  188. 

influence  have  been  used  to  bring  about  a  bargain  advantageous 
to  the  one  side  and  ruinous  to  the  other. 

§  188.  Immediately  connected  with  this  subject  is  the  sale 
by  an  heir  or  reversioner  of  his  expectancy  or  reversionary  in- 
terest. It  is  said  that  "it  is  incumbent  upon  those  who  deal 
with  an  expectant  heir,  relative  to  his  reversionary  interest,  to 
make  good  the  bargain;  that  is,  to  be  able  to  show  that  a  full 
and  adequate  consideration  was  paid.  In  all  such  cases  the 
issue  is  upon  the  adequacy  of  the  price.  No  proof  of  fraud  is 
necessary;  and  the  relief  is  given  upon  general  principles  of 
mischief  to  the  public,  without  requiring  particular  evidence 
of  actual  imposition."  ^  Such  a  purchase  is  a  constructive  fraud, 
and  the  purchaser,  if  a  stranger,  will  be  compelled  to  account 
and  to  give  up  the  bargain,  if  found  to  be  advantageous.-  A  sale 
by  an  heir  will  not  be  supported  against  him  unless  it  is  per- 
fectly fair  in  every  respect,  and  beyond  suspicion,  and  for  an 
adequate  price.^  The  burden  is  upon  the  purchaser  to  show 
the  fairness  of  the  transaction  and  the  sufficiency  of  the  con- 
sideration, and  not  upon  the  heir  to  impeach  either  the  one  or 
the  other;  *  and  it  is  said  that  it  is  immaterial  that  the  heir  is  of 

1  Sir  William  Grant  in  Gowland  v.  De  Faria,  17  Vee.  20. 

2  Jenkins  v.  Pye,  12  Pet.  258;  Call  i;.  Gibbons,  3  P.  Wms.  290;  Bar- 
nardiston  v.  Lingood,  2  Atk.  133;  Walmesley  v.  Booth,  id.  28;  Gwynne  v. 
Heaton,  1  Bro.  Ch.  10.  [Aylesford  v.  Morris,  8  Ch.  484;  Fry  v.  Lane,  40 
Ch.  Div.  312;  James  v.  Kerr,  40  Ch.  Div.  449.] 

*  Knott  V.  Hill,  1  Vern.  167;  Westerfield  v.  Janssen,  2  Ves.  125;  1  Lead. 
Cas.  Eq.  428-494,  Eng.  and  Am.  notes;  Bawtree  v.  Watson,  3  M.  &  K.  339; 
Portmore  i'.  Taylor,  4  Sim.  182;  Peacock  v.  Evans,  16  Ves.  512;  Newton  v. 
Hunt,  5  Sim.  54;  Talbot  v.  Staniforth,  1  John.  &  H.  484;  Foster  i-.  Roberts, 
29  Beav.  467;  Jones  v.  Ricketts,  31  Beav.  130;  Salter  v.  Bradshaw,  26  Beav. 
161;  Bury  v.  Oppenheim,  id.  594;  King  v.  Hamlet,  4  Sim.  223;  2  M.  &  K. 
456;  Denton  v.  Donner,  23  Beav.  285;  Hannah  v.  Hodgson,  30  Beav.  19; 
St.  Albyn  v.  Harding,  27  Beav.  11;  Nesbitt  v.  Berridge,  32  Beav.  282; 
Perfect  v.  Lane,  31  L.  J.  Ch.  489;  Edwards  v.  Burt,  2  De  G.,  M.  &  G.  55; 
Aldborough  v.  Frye,  7  CI.  &  Fin.  436. 

*  Gowland  v.Be  Faria,  17  Ves.  24;  Coles  v.  Trecothick,  9  Ves.  246;  Davis 
V.  Marlborough,  2  Swanst.  141;  Portmore  v.  Taylor,  4  Sim.  209;  Shelley  v. 
Nash,  3  Madd.  236;  Ninmio  v.  Davis,  7  Tex.  260;  Poor  v.  Hazleton,  15  N. 
H.  564. 

VOL.  I.  — 20  305 


§  188.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

mature  age.'  In  this  country  the  rule  may  be  stated  with  still 
more  severity,  that  the  sale,  by  an  heir,  of  his  expectancy  during 
the  life  of  the  ancestor,  is  contrary  to  public  policy  and  is  void, 
unless  such  sale  is  assented  to  by  the  ancestor,  and  supported 
by  an  adequate  consideration."  (a)  If,  however,  the  sale  is  at 
auction,  it  will  be  some  proof  of  fairness  and  sufficiency  of  price,^ 
and  if  the  sale  is  made  with  the  knowledge  and  assent  of  the 
ancestor  it  will  be  good."*  (6)  But  it  seems  that  the  rule  is  con- 
fined to  those  expectancies  that  combine  the  relation  of  heir 
with  that  of  remainder-man  and  reversioner.  If  the  expectant 
is  not  heir,  but  is  simply  entitled  to  a  remainder  or  reversion  by 
virtue  of  some  instrument  or  settlement,  he  may  sell  and  assign 
his  future  interest,  and  such  sale  will  not  be  avoided  unless 
some  of  the  common  rules  of  equity  are  violated  by  the  pur- 
chaser. In  such  cases  there  is  no  fraud  upon  parents  or  third 
persons,  consequently  there  is  nothing  contrary  to  public  policy 
in  such  purchases.^ 

*  Davis  V.  Marlborough,  2  Swanst.  146;  Evans  v.  Cheshire,  Belt,  Supp. 
305;  Addis  v.  Campbell,  4  Beav.  401. 

'  Varick  V.  Edwards,  1  HofF.  383;  Boynton  v.  Hubbard,  7  Mass.  112; 
Fitch  V.  Fitch,  8  Pick.  480;  Trull  v.  Eastman,  3  Met.  121;  Poor  v.  Hazleton, 
15  N.  H.  564;  Nimmo  v.  Davis,  7  Tex.  266;  Jenkins  v.  Pye,  12  Pet.  257; 
Davidson  v.  Little,  22  Penn.  St.  252. 

»  Fox  V.  Wright,  6  Madd.  Ill;  Shelley  v.  Nash,  3  Madd.  232;  Nevraian 
V.  Meek,  1  Freem.  Ch.  441;  Erwin  v.  Parham,  12  How.  197. 

*  Fitch  V.  Fitch,  8  Pick.  480;  Trull  v.  Eastman,  3  Met.  121;  Nimmo  v. 
Davis,  7  Tex.  266;  King  v.  Hamlet,  2  M.  &  K.  456;  3  CI.  &  F.  218.  In  Ohio, 
however,  it  has  been  held  that  a  contract  is  invalid  by  which  a  son  released 
to  his  father,  in  consideration  of  an  advancement,  all  his  expectancies  upon 
the  father's  estate.  Needles  v.  Needles,  7  Ohio  St.  432.  The  case  is  not 
sustained  by  other  authorities,  and  seems  not  to  rest  upon  the  principles 
applicable  to  such  transactions. 

^  Cribbins  v.  Markwood,  13  Grat.  495;  Durm  v.  Chambers,  4  Barb. 

(a)  It   has   been   held   that   the  hind  his  father's  back,  but  with  his 

absence  of  the  ancestor's  consent  is  sanction  and  assistance,  and  has  all 

only  potent  evidence  of  fraud  and  the  protection  that  his  father  can 

that  his  assent  is  not  an  absolute  give  him,  he  is  not  entitled  to  relief 

essential  of  the  sale.      Hale  v.  Hoi-  as  if  the  contract  had  been  entered 

Ion,  90  Tex.  427.     See  contra,  Mc-  into  without  such  paternal  protec- 

Clure  V.  Raben,   133  Ind.  507.  tion.    O'Rorke  «;.  Bolingbroke,  2  A. 

(6)  Where  the  heir  deals,  not  be-  C.  814,  828. 
306 


CHAP.  VI.]  MENTAL   WEAKNESS.  [§   189. 

§  189.  Another  kind  of  constructive  trust  arises  from  the 
mental  incapacities  of  parties  to  enter  into  contracts.  Thus  a 
non  compos  mentis  cannot  make  a  binding  contract.'  The  deed 
of  such  person  is  either  absolutely  void,  or  at  least  voidable,- 
and  equity  will  give  relief  by  declaring  a  party  taking  under 
such  a  conveyance  to  be  a  trustee,  and  by  ordering  him  to 
execute  a  reconveyance.^  Whether  a  person  has  capacity 
enough  to  make  a  contract,  is  always  a  question  of  fact  in 
each  particular  case;  for  mere  weakness  of  mind,  not  amounting 
to  idiocy  or  insanity,  is  no  ground  for  avoiding  a  contract. 
Courts  cannot  measure  the  extent  of  a  party's  understanding. 
If,  therefore,  a  person  is  not  an  idiot  nor  an  insane  person,  he 
may  enter  into  contracts,  although  he  may  be  of  a  low  order  of 
intelligence  and  of  weak  reasoning  powers.^    At  the  same  time 

376;  Davidson  v.  Little,  22  Penn.  St.  252;  Wiseman  v.  Beake,  2  Vem.  121 
Cole  t;.  Gibbons,  3  P.  Wms.  290;  Barnardiston  v.  Lingood,  2  Atk.  133 
Bowers  v.  Heaps,  3  V.  &  B.  117;  Davis  v.  Marlborough,  2  Swanst.  130 
Addis  V.  Campbell,  4  Beav.  401;  Nickolls  v.  Gould,  2  Ves.  422;  Henley  v 
Axe,  2  Bro.  Ch.  17;  2  Swanst.  141;  Griffith  v.  Spratley,  2  Bro.  Ch.  179 
1  Cox,  383;  Moth  v.  Atwood,  5  Ves.  845;  Montesquieu  v.  Sandys,  18  Ves. 
302.     [See  Fry  v.  Lane,  40  Ch.  Div.  312.]     The  peculiar  character  and 
position  of  sailors  call  for  the  interposition  of  courts  when  they  are  de- 
frauded, and  when  one  has  sold  his  prize-money  for  a  small  sum,  the 
Master  of  the  Rolls  said  that  it  was  reasonable  to  regard  them  as  young 
heirs,  and  to  relieve  them  accordingly.     How  i'.  Weldon,  2  Ves.  515. 

*  Chesterfield  v.  Janssen,  2  Ves.  155. 

*  Allis  V.  Billings,  6  Met.  415;  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh. 
239;  Price  v.  Berrington,  3  Mac.  &  G.  480;  Molton  v.  Camroux,  2  Exch. 
487;  4  Exch.  17;  De  Silver's  Est.,  5  Rawl.  Ill;  Beneell  v.  Chancellor,  5 
Whart.  376;  Beals  v.  Lee,  10  Barr,  56. 

»  Rushloy  V.  Mansfield,  Toth.  42;  Mansfield's  Case,  12  Co.  123;  Addi- 
son V.  Mascall,  2  Vem.  678;  3  Atk.  110;  Price  v.  Berrington,  7  Hare,  394; 
3  Mac.  &  G.  486;  Addison  v.  Dawson,  2  Vern.  678;  Welby  v.  Welby,  Toth. 
164;  Wright  v.  Booth,  id.  166;  Wilkinson  v.  Brayfield,  2  Vern.  307;  Clark 
V.  Ward,  Pr.  Ch.  150;  Ferres  v.  Ferres,  Eq.  Ab.  695;  Att.  Gen.  t^.  Pamther, 
3Bro.  Ch.  441. 

*  Osmond  v.  Fitzroy,  3  P.  Wms.  130;  Willis  v.  Jemegan,  2  Atk.  251; 
1  Story's  Eq.  Jur.  §  235;  Ex  parte  Allen,  15  Maes.  58;  Hadley  v.  Latimer, 
3  Yerg.  537;  Mann  v.  Betterley,  21  Vt.  326;  Thomas  v.  Sheppard,  2  McCord, 
Eq.  36;  Rippy  v.  Cant,  4  Ired.  Eq.  447;  Mason  v.  Williams,  3  Munf.  126; 
Morrison  v.  McLeod,  2  Dev.  &  Bat.  Eq.  221;  Green  v.  Thompson,  2  Ired. 
Eq.  365;  Bath  &  Montague's  Ca.,  3  Ch.  Cas.  107. 

307 


§  189,]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

such  persons  are  easily  imposed  upon  and  defrauded;  and  if  it 
appears  that  one  of  the  parties  to  a  contract  is  of  weak  mind 
and  feeble  powers,  the  whole  transaction  will  be  carefully  in- 
vestigated, and  the  conduct  of  the  person  procuring  such  con- 
tract will  be  closely  scrutinized;  for  arts  and  practices  that 
would  be  perfectly  harmless  in  a  transaction  with  a  man  of 
high  intelligence  and  prudence  and  great  power  of  observing 
and  reasoning  may,  and  probably  would,  deceive  and  mislead 
a  person  of  weak  mind  and  feeble  powers,  although  not  incapa- 
ble of  entering  into  contracts  and  transacting  business  generally.^ 
Therefore  the  weakness  of  a  party's  mind  is  a  very  material 
fact  in  determining  the  character  of  a  transaction,  and  if,  in 
contracts  with  such  persons,  there  is  found  the  least  art  or 
stratagem,  or  any  undue  influence,  or  any  ingredient  of  fraud  or 
suspicion  of  unfairness,  courts  will  set  the  contract  aside,  or 
convert  the  offending  party  into  a  trustee.^  Upon  these  prin- 
ciples, if  the  contract  is  of  an  unusual,  unreasonable,  or  extraor- 
dinary character,^  or  if  it  is  without  consideration,  or  upon  an 
inadequate  consideration,^  or  if  the  instrument  falsely  recites 
a  consideration,^   or    if   there   is    actual    proof  of    undue  in- 

1  Bridgman  v.  Green,  Wilm.  61;  2  Ves.  627;  Donnegal's  Case,  id.  407; 
Gartside  v.  Isherwood,  1  Bro.  Ch.  560;  Blackford  v.  Christian,  1  Knapp,  77; 
Dunn  V.  Chambers,  4  Barb.  376;  Clark  v.  Malpas,  4  De  G.,  F.  &  J.  401. 

-  Griffin  v.  De  VeuUe,  3  Wood.  Lect.  App.  16;  Nottige  v.  Prince,  2  Gif. 
246;  Longmate  v.  Ledger,  id.  157;  Baker  v.  Monk,  33  Beav.  419;  Boyse  v. 
Rossborough,  6  H.  L.  Cas.  2;  Harding  v.  Handy,  11  Wheat.  103;  Tracey 
V.  Sackett,  1  Ohio  St.  54;  Whitehom  v.  Hines,  1  Munf.  557;  Whelan  v. 
Whelan,  3  Cow.  537;  Deatly  v.  Murphy,  3  A.  K.  Marsh.  472;  Brogden  v. 
Walker,  2  H.  &  J.  285;  Rumph  v.  Abercrombie,  12  Ala.  64. 

'  Fane  v.  DevonsMre,  2  Bro.  P.  C.  77;  Bridgman  v.  Green,  2  Ves.  627; 
Dent  V.  Bennett,  7  Sim.  539;  4.  M.  &  Cr.  629;  Malin  v.  Malin,  2  Johns.  Ch. 
238;  Bennett  v.  Vade,  2  Atk.  235;  Nantes  v.  Corrock,  9  Ves.  181;  Willan  v. 
Willan,  16  Ves.  72;  Ball  v.  Maurice,  3  Bligh  (n.  s.)  1;  1  Dow  (n.  s.) 
392. 

*  Ibid.;  Clarkson  v.  Hanway,  2  P.  Wms.  203;  Gartside  v.  Isherwood, 
1  Bro.  Ch.  558;  Hutchinson  v.  Tindall,  2  Green.  Ch.  357;  Rumph  v.  Aber- 
crombie, 12  Ala.  64;  Fillmer  t'.  Gott,  7  Bro.  P.  C.  70;  Hunt  v.  Moore,  2  Barr, 
105. 

^  Gibson  v.  Russell,  2  Younge  &  C.  Ch.  104;  Harvey  v.  Mount,  8  Beav. 
439. 

308 


CHAP.  VI.]  MENTAL   WEAKNESS.  [§  190. 

fluence,  (a)  or  of  art  or  circumvention/  or  if  there  is  a  fiduciary, 
confidential,  or  influential  relation  between  the  parties,"  courts 
will  interfere  and  protect  a  person  of  weak  mind  from  his 
contracts. 

§  190.  Mental  weakness  is  not  of  itself  a  sufficient  ground 
for  avoiding  an  agreement,  but  it  must  appear  that  some  advan- 
tage was  taken  of  it  to  procure  a  favorable  contract;  and  if  the 
other  party  stood  in  some  fiduciary  relation  to  the  person  of 
weak  mind,  the  burden  is  upon  him  to  show  that  the  contract 
was  in  every  respect  fair,  and  that  no  advantage  was  obtained 
from  the  influential  position  on  the  one  hand,  or  from  the  feeble- 
ness of  mind  on  the  other.  And  it  is  quite  immaterial  from 
whence  the  mental  weakness  arises.  It  may  arise  from  a  natural 
and  permanent  imbecility  of  mind,  or  it  may  arise  from  some 
temporary  illness  or  debility,  or  from  the  weakness  and  infirmity 
of  extreme  old  age.  Each  case  must  depend  upon  its  own  cir- 
cumstances. If  there  is  a  fixed  and  permanent  state  of  idiocy  or 
insanity,  or  if  the  party  is  a  declared  lunatic  and  his  affairs  are 

'  Portington  ;;.  Eglington,  2  Vern.  189;  Gartside  v.  Ishenv'ood,  1  Bro. 
Ch.  558;  Bridgman  v.  Green,  2  Ves.  627;  Edmunds  v.  Bird,  1  V.  &  B.  542; 
Fox  V.  Mackreth,  2  Bro.  Ch.  420. 

*  Kennedy  v.  Kennedy,  2  Ala.  571;  Brice  v.  Brice,  5  Barb.  533;  Buf- 
falow  V.  Buffalow,  2  Dev.  &  Bat.  Eq.  241;  Osmond  v.  Fitzroy,  3  P.  Wms. 
130;  Dent  v.  Bennett,  7  Sim.  539;  2  M.  &  C.  269;  Cruise  v.  Christopher, 
5  Dana,  181;  Whipple  v.  Clure,  2  Root,  216;  Brooke  v.  Berry,  2  Gill,  83; 
McCraw  v.  Davis,  2  Ired.  Eq.  618;  Huguenin  v.  Baseley,  14  Ves.  273; 
Griffith  V.  Robins,  3  Madd.  191;  Whelan  v.  Whelan,  3  Cow.  537. 

(a)  The  influence,  in  such  cases,  81  Ky.  10.  A  gift,  as  well  as  a  con- 
to  invalidate  a  conveyance,  must  be  veyance,  may  be  set  aside  in  equity 
of  such  a  nature  as  to  deprive  the  for  undue  influence,  or  the  donor's 
grantor  of  his  free  agency.  Dorsey  executors  may  recover  the  gift, 
V.  Wolcott,  173  111.  539;  Francis  v.  though  the  donee  did  not  stand  in 
Wilkinson,  147  111.  370;  Maynard  any  confidential  relation  to  the 
V.  Tyler,  168  Mass.  107;  Trost  v.  donor.  James  r.  Kerr,  40  Ch.  D. 
Dingier,  118  Penn.  St.  259;  McFadin  449;  Morley  v.  Loughnan,  [1893] 
V.  Catron,  120  Mo.  252;  Rozefl  v.  1  Ch.  736;  Lewis  v.  Merritt,  113 
Vansyckle,  11  Wash.  79;  Parrish  N.  Y.  386;  Woodbury  i-.  Woodbury, 
V.  Parrish,  33  Or.  486;  Wise  v.  Foote,  141  Mass.  329. 

309 


§  191.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

in  the  hands  of  a  committee  or  of  a  guardian,  there  can  be  little 
or  no  doubt.  Questions  generally  arise  where  there  is  not  this 
entire  want  of  capacity,  —  where  no  general  rule  can  be  laid 
down,  but  the  court  is  left  to  judge  of  the  capacity  of  the  con- 
tracting party,  of  the  circumstances  under  which  the  contract 
was  made,  and  whether  from  all  the  facts  in  the  case  the  contract 
ought  in  equity  and  good  conscience  to  be  sustained.  Extreme 
old  age,  accompanied  by  great  infirmity;  or  extreme  weakness 
and  feebleness  of  mind,  arising  from  temporary  illness  or  per- 
manent imbecility,  stopping  short  of  absolute  incapacity,  —  are 
all  pertinent  facts,  tending  to  show,  if  accompanied  by  other 
circumstances,  a  fraudulent  contract;  but  if  upon  all  the  evi- 
dence the  contract  is  a  fair  one,  if  the  enfeebled  person  is  sur- 
rounded by  his  friends,  who  understand  the  transaction  and 
explain  it  to  the  party,  it  will  not  be  set  aside.' 

§  191.  Substantially  the  same  rules  apply  to  deeds  and  in- 
struments executed  by  a  drunken  person.  Drunkards,  while 
laboring  under  the  frenzy  of  drink,  are  non  compotes  mentis  by 
their  own  act,^  and  it  is  said  that  they  may  plead  non  est  factum 
to  a  deed  executed  while  so  drunk  that  they  do  not  know  what 
they  are  doing.^  In  such  case  there  can  of  course  be  no  intelli- 
gent consent  to  any  contract.  But  equity  will  not  always  inter- 
fere to  protect  a  drunken  man  from  the  folly  of  his  own  acts, 
and  will  not,  on  account  of  drunkenness  alone,  set  aside  a  con- 

1  Griffith  V.  Robins,  3  Madd.  191;  Harding  v.  Handy,  11  Wheat.  193; 
Dent  V.  Bennett,  7  Sim.  539;  Att.  Gen.  v.  Parnther,  3  Bro.  Ch.  443;  Hunter 
1'.  Atkins,  3  M.  &  K.  146;  Lewis  v.  Pead,  1  Ves.  Jr.  19;  Pratt  v.  Barker,  1 
Sim.  1;  4  Russ.  507;  Rippy  v.  Gant,  4  Ired.  Eq.  447;  Gratz  v.  Cohen,  11 
How.  1. 

«  Co.  Litt.  247  a,  447  a;  Beverley's  Case,  4  Co.  124;  Hendrick  v.  Hop- 
kins, Gary,  93. 

'  Cole  V.  Robins,  Bull.  N.  P.  172;  Cook  v.  Clayworth,  18  Ves.  12;  Rey- 
nolds V.  Waller,  1  Wash.  212;  Rutherford  v.  Ruff,  4  Des.  350;  Gore  v.  Gibson, 
13  M.  &  W.  623;  Barrett  v.  Buxton,  2  Ark.  167 ;  Peyton  v.  RawUns,  1  Hay w.  77 ; 
Clifton  V.  Davis,  1  Pars.  Eq.  31;  French  v.  French,  2  Ham.  214;  Wiggles- 
worth  V.  Steers,  1  Hen.  &  Munf.  70;  Shaw  v.  Thackray,  1  Sm.  &  Git. 
537. 

310 


CHAP.  VI.]  DURESS.  (§  192. 

tract  or  convert  the  other  party  into  a  trustee.'  And  this  is 
more  especially  the  rule  where  the  object  of  the  contract  is  to 
carry  out  a  family  settlement,  or  the  contract  is  fair  and  reason- 
able in  its  terms.2  But  if  there  is  any  contrivance  or  manage- 
ment to  induce  drunkenness  and  to  procure  a  contract,  or  if 
there  was  any  unfair  advantage  taken  of  the  drunkenness  to 
procure  a  contract,  it  would  be  an  actual  fraud,  and  the  court 
will  not  allow  a  party  to  retain  any  advantage  procured  in  such 
manner,  nor  would  it  lend  its  aid  to  carry  it  into  effect.' 

§  192.  So,  equity  will  relieve  in  all  cases  of  contracts  pro- 
cured by  duress,  or  fear,  or  apprehension;  for  if  there  has  been 
any  restraint  upon  a  person's  freedom  to  consent  or  dissent, 
or  any  practice  upon  his  fears,  it  is  a  kind  of  fraud,  and  no  one 
ought  to  enjoy  an  advantage  gained  in  such  manner.'*  Thus, 
if  a  contract  is  made  with  one  in  prison,  or  under  any  circum- 
stances of  oppression,  equity  will  scrutinize  it  with  great  care.^ 
And  so,  if  advantage  is  taken  of  the  extreme  distress  or  necessity 
of  a  party,  to  obtain  a  favorable  bargain  from  him,  equity  will 

'  Johnson  v.  Meddlicott,  3  P.  Wms.  131  n.;  Cory  v.  Cory,  1  Ves.  19; 
Nagle  V.  Bayler,  2  Dr.  &  W.  60;  Cooke  v.  Clay  worth,  18  Ves.  12;  Maxwell 
V.  Pittinger,  2  Green.  Ch.  156;  Morrison  i'.  McLeod,  2  Dev.  &  Bat.  Eq. 
221;  Whitesides  v.  Greenlee,  2  Dev.  Eq.  152;  Moore  v.  Read,  2  Ired.  Eq. 
580;  Hotchkiss  v.  Fortson,  7  Yerg.  67;  Belcher  v.  Belcher,  19  Yerg.  121; 
Hutchinson  v.  Brown,  1  Clark,  Ch.  408;  Harbison  v.  Lemon,  3  Blackf.  51. 

2  Cory  V.  Cory,  1  Ves.  19;  Cooke  v.  Clayworth,  18  Ves.  12. 

3  Johnson  ;;.  Meddlicott,  3  P.  Wms.  131;  Say  v.  Barwick,  1  V.  «fe  B. 
195;  Jenness  v.  Howard,  6  Blackf.  240;  Cory  v.  Cory,  1  Ves.  19;  Cooke  v. 
Clayworth,  18  Ves.  12;  Crane  v.  Conklin,  Saxt.  346;  Calloway  v.  Wcther- 
epoon,  5  Ired.  Eq.  128;  Hutchinson  v.  Tindall,  2  Green.  Ch.  128;  Phillips 
V.  Moore,  11  Miss.  600;  Cooley  v.  Rankin,  id.  642;  Cragg  i-.  Holme,  18  Vee. 
14  n.;  Shiers  v.  Higgons,  1  Madd.  Ch.  Pr.  399;  Nagle  v.  Baylor,  2  Dr.  &  W. 
64;  Shaw  v.  Thackray,  1  Sm.  &  Gif.  537. 

*  Att.  Gen.  v.  Sothen,  2  Vem.  497;  Crowe  v.  Ballard,  1  Ves.  Jr.  220; 
Anon.,  3  P.  Wms.  29,  n.  (e) ;  Gist  v.  Frazier,  2  Lit.  118;  Evans  v.  Llewellyn,  1 
Cox,  340;  Hawes  t;.  Wyatt,  3  Bro.  Ch.  158. 

^  Att.  Gen.  v.  Sothen,  2  Vem.  497;  Roy  v.  Beaufort,  2  Atk.  190;  Falkner 
V.  O'Brien,  2  B.  &  B.  214;  Underhill  r.  Horwood,  10  Ves.  209;  Nicholls  v. 
Nicholls,  1  Atk.  409;  Griffith  v.  Spratley,  1  Cox,  333;  Hinton  v.  Hinton, 
2  Ves.  634. 

311 


§  194.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

give  relief;  ^  but  the  advantage  must  have  been  within  the  con- 
templation of  the  parties  at  the  time. 

§  193.  Of  course,  if  two  or  more  of  these  suspicious  circum- 
stances are  found  in  the  same  case;  as,  if  property  is  obtained 
from  a  person  of  weak  mind,  or  under  duress,  or  in  great  dis- 
tress, for  a  grossly  inadequate  consideration,  or  upon  any  un- 
usual, extraordinary,  or  oppressive  terms,  the  evidence  would 
be  much  stronger  of  some  fraudulent  practice,  and  would  call 
upon  the  suspected  party  for  a  very  complete  vindication  of  the 
transaction,  or  he  would  be  converted  into  a  trustee.^ 

§  194.  Lord  Hardwicke's  "third  species  of  fraud  may  be 
presumed  from  the  circumstances  and  condition  of  the  parties 
contracting;  and  this  goes  further  than  the  rule  of  law,  which 
is,  that  fraud  must  be  proved,  not  presumed."  ^  At  law,  fraud 
must  be  proved;  but  in  equity  there  are  certain  rules  prohibit- 
ing parties  bearing  certain  relations  to  each  other  from  contract- 
ing between  themselves;  and  if  parties  bearing  such  relations 
enter  into  contracts  with  each  other,  courts  of  equity  presume 
them  to  be  fraudulent,  and  convert  the  fraudulent  party  into 
a  trustee.  And  herein  courts  of  equity  go  further  than  courts 
of  law,  and  presume  fraud  in  cases  where  a  court  of  law  would 
require  it  to  be  proved;  that  is,  if  parties  within  the  prohibited 
relations  or  conditions  contract  between  themselves,  courts  of 
equity  will  avoid  the  contract  altogether,  without  proof,  or 
they  will  throw  upon  the  party  standing  in  this  position  of 

1  Gould  V.  Okeden,  3  Bro.  P.  C.  560;  Harvey  v.  Mount,  8  Beav.  439; 
Hawea  v.  Wyatt,  3  Bro.  Ch.  156;  Bosanquet  v.  Dashwood,  Ca.  t.  Talb.  37; 
Proof  V.  Hines,  id.  Ill;  Pickett  v.  Loggon,  14  Ves.  215;  Farmer  v.  Farmer, 
1  H.  L.  Caa.  724;  Fitzgerald  v.  Rainsford,  1  B.  &  B.  37;  Underbill  v.  Horwood, 
10  Ves.  209;  Huguenin  v.  Baseley,  14  Ves.  273;  Carpenter  v.  Elliott,  2  Vee. 
494;  Basy  v.  Magrath,  2  Sch.  &  Lef.  31;  Ramsbottom  v.  Parker,  6  Madd.  6; 
Wood  V.  Abrey,  3  Madd.  417;  Crowe  v.  Ballard,  1  Ves.  Jr.  215;  Nottige  v. 
Prince,  6  Jur.  (n.  s.)  1066;  Davis  v.  McNally,  5  Sneed,  583;  Graham  v.  Little, 
3  Jones,  Eq.  152;  Stewart  v.  Hubbard,  id.  186. 

"  Griffin  i;.  De  Veulle,  Wood.  Lect.  App.  16. 

'  Chesterfield  v.  Janssen,  2  Ves.  155. 

312 


CHAP.  \l.]       CONTRACTS    WITH    CESTUI    QUE    TRUST.  [§  195. 

trust,  confidence,  and  influence,  the  burden  of  proving  the  entire 
fairness  of  the  transaction.  Thus,  if  a  parent  buys  property  of 
his  child,  a  guardian  of  his  ward,  a  trustee  of  his  cestui  que 
trust,  an  attorney  of  his  cHent,  or  an  agent  of  his  principal, 
equity  will  either  avoid  the  contract  altogether,  without  proof 
or  it  will  throw  the  burden  of  proving  the  fairness  of  the  trans- 
action upon  the  purchaser;  and,  if  the  proof  fails,  the  contract 
will  be  avoided,  or  the  purchaser  will  be  construed  to  be  a 
trustee  at  the  election  of  the  other  party.  The  ground  of  this 
rule  is,  that  the  danger  of  allowing  persons  holding  such  rela- 
tions of  trust  and  influence  with  others  to  deal  with  them  is  so 
great  that  the  presumption  ought  to  be  against  the  transaction, 
and  the  person  holding  the  trust  or  influence  ought  to  be  re- 
quired to  vindicate  it  from  all  fraud,  or  to  continue  to  hold  the 
property  in  trust  for  the  benefit  of  the  ward,  cestui  que  trust, 
or  other  person  holding  a  similar  relation.^ 

§  195.  These  principles  are  applied  in  their  full  vigor  to  all 
contracts  and  sales  between  trustee  and  cestui  que  trust.^    The 

1  Hoghton  V.  Hoghton,  15  Beav.  278;  Cooke  t-.  Lamotte,  id.  234;  Ahearne 
e;.  Hogan,  1  Dr.  310;  Espey  v.  Lake,  10  Hare,  260;  Prideaux  v.  Lonsdale, 

1  De  G.,  J.  &  S.  433;  Bayley  v.  WilUams,  11  Jur.  (n.  s.)  236;  Clark  v.  Mal- 
pas,  31  Beav.  80;  Grosvenor  v.  Sherratt,  28  Beav.  659;  Beanland  t>.  Bradley, 

2  Sm.  &  Gif.  339;  Taylor  v.  Taylor,  8  How.  183;  Greenfield's  Est.,  14  Penn. 
St.  504;  Graham  v.  Pancoast,  30  id.  89;  Nace  v.  Boyer,  id.  99;  Wester's  App. 
54  id.  60;  Sears  v.  Shafer,  2  Seld.  268;  Buffalow  v.  Buffalow,  2  Dev.  &  Bat. 
241;  Prewett  v.  Coopwood,  30  Miss.  369;  Graham  v.  Little  3  Jones,  Eq. 
152;  Powell  v.  Cobb,  id.  456;  Gass  v.  Mason,  4  Sneed,  497;  Lovatt  v.  Knipe, 
12  Ir.  Eq.  124;  Ames  v.  Port  Huron,  11  Mich.  139;  European  R.  R.  Co.  v. 
Poor,  59  Maine,  277.  [DarUngton's  Estate,  147  Pa.  St.  624;  Roby  v.  Cole- 
hour,  135  111.  300;  Luddy's  Trustee  v.  Peard,  33  Ch.  Div.  .500;  IT.  S.  v. 
Coffin, 83  Fed.  337;  Liles  t;.Terry,  [1895]  2  Q.  B.  679;  Dougan  v.  Macpherson, 
[1902]  A.  C.  197;  Saunders  v.  Richard,  35  Fla.  28;  Wildey  v.  Robinson,  85 
Hun,  362.] 

'  Hatch  V.  Hatch,  9  Ves.  296;  Hylton  v.  Hylton,  2  Ves.  549;  Hunter  v. 
Atkins,  3  M.  &  K.  135;  Bulkley  v.  Wilford,  2  CI.  &  Fin.  102;  Farnam  v. 
Brooks,  9  Pick.  212;  Boynton  v.  Brastow,  53  Me.  362;  Staats  v.  Bergen, 
17  N.  J.  Eq.  .554;  Coffee  v.  Ruffin,  4  Cold.  487;  Faucett  v.  Faucett,  4  Bush. 
521;  Korns  v.  Shaffer,  27  Md.  83;  Baltimore  v.  Caldwell,  25  Md.  423;  Smith 

313 


§  195.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  YJ. 

trustee  is  in  such  a  position  of  confidence  and  influence  over 
the  cestui  que  trust,  that  the  contract  or  bargain  will  either  be 
void  or  he  will  be  a  constructive  trustee,  at  the  election  of  the 
cestui  que  trust,  unless  the  trustee  can  show  that  the  contract 
was  entirely  fair  and  advantageous  to  the  cestui  que  trust}  (a) 

V.  Townshend,  27  Md.  368;  Colbom  v.  Morton,  3  Keyes,  266;  Pairo  v. 
Vickery,  37  Md.  467;  Wright  v.  Campbell,  27  Ark.  637. 

1  Crosskill  v.  Bower,  32  Beav.  86;  Pooley  v.  Quilter,  2  De  G.  &  J.  327; 
Spring  V.  Pride,  10  Jur.  (n.  s.)  646;  Ex  parte  Ridgeway,  1  Jur.  (n.  s.)  97; 
Heme  v.  Meeres,  1  Vem.  465;  Ayliffe  v.  Murray,  2  Atk.  59;  Fox  v.  Mackreth, 
2  Bro.  Ch.  400;  Coles  v.  Trecothick,  9  Ves.  246;  Ex  parte  Lacey,  6  Ves. 
625;  Morse  v.  Royal,  2  Ves.  376;  Whichcote  v.  Lawrence,  3  Ves.  740;  Gibson 
V.  Jeyes,  6  Ves.  277;  Hunter  d.  Atkins,  3  M.  &  K.  135;  Scott  v.  Davis,  4  M.  & 
Or.  87;  Kerr  v.  Dungannon,  1  Dr.  &  W.  509;  Van  Epps  v.  Van  Epps,  9 
Paige,  237;  Hawley  v.  Cramer,  4  Cow.  717;  Campbell  v.  Walker,  5  Ves. 
678;  Michoud  v.  Girod,  4  How.  503;  De  Caters  v.  Chaumont,  3  Paige,  178; 
Child  V.  Bruce,  4  Paige,  309;  Campbell  v.  Johnston,  1  Sandf.  Ch.  148;  Cram 
V.  Mitchell,  id.  251;  Davis  v.  Simpson,  5  Har.  &  J.  147;  Boyd  v.  Hawkins, 
2  Ired.  Ch.  304;  Matthews  v.  Dragand,  3  Des.  25;  Thorp  v.  McCulIum,  1 
Gilm.  614;  Davoue  v.  Fan.ning,  2  Johns.  Ch.  252;  De  Bevoise  v.  Sandf ord, 
1  Hoff.  192;  Stuart  v.  Kissam,  2  Barb.  493;  Richardson  v.  Jones,  3  G.  &  J. 
163;  Clark  v.  Lee,  14  Iowa,  425;  Zimmerman  v.  Harmon,  4  Rich.  Eq.  165; 
Johnson  v.  Blackman,  11  Conn.  343;  Moody  v.  Vandyke,  4  Binn.  31;  Arm- 
strong V.  Campbell,  3  Yerg.  201;  Bruch  v.  Lantz,  2  Rawle,  392;  Herr's  Est., 
1  Grant's  Cas.  172;  Painter  v.  Henderson,  7  Barr,  48;  Brackenridge  v.  Hol- 
land, 2  Blackf.377;  Scroggins  v.  McDougald,8  Ala.  382;  Thompson  t>.  Wheat- 
ley,  5  S.  &  M.  499;  Shelton  v.  Homer,  5  Met.  462;  Freeman  v.  Harwood, 
49  Maine,  195;  Hickman  v.  Stewart,  69  Tex.  255;  Patterson's  Appl.,  118 
Penn.   St.   571. 

(a)  "A  trustee  or  an  agent  may  mation  gained  as  trustee  or  agent, 

purchase  the  trust  property  directly  and  that  the  entire  transaction  is 

from  his  cestui  que  trust  sui  juris,  fair  and  open.     But  the  condition 

or  principal,  on  condition  that  the  is    inexorable.      Any    omission    by 

latter  intends  that  the  former  shall  the  trustee  or  agent  to  disclose  any 

buy,  that    the   former   discloses  to  fact  material  to  the  sale  learned  by 

the   latter,    before   the   contract   is  him  as  trustee  or  agent,  any  mate^ 

made,  every  fact  he  has  learned  in  rial  misrepresentation,  concealment, 

his     fiduciary     relation     which     is  or  other  disregard  of  this  condition, 

material  to  the  sale,  that  he  exer-  renders  the  sale  and   the  contract 

cises   the  utmost   good   faith,   that  for  it  voidable  at  the  election  of  the 

no  advantage  is  taken  by  misrepre-  cestui  que  trust  or  principal."    Bryne 

eentation,  concealment  of,  or  omis-  v.  Jones,  159  Fed.  321. 
sion    to    disclose,  important    infor- 

314 


CHAP.  VI.]       CONTRACTS    WITH    CESTUI    QUE    TRUST.  [§  195. 

The  presumption  is  against  the  transaction.  If  a  cestui  confess 
judgment  or  make  a  deed  to  the  trustee,  the  burden  is  on  the 
latter  to  repel  the  intendment  of  law  that  there  was  undue  in- 
fluence.' If  a  trustee  conveys  trust  property  to  himself,  any 
one  or  more  of  the  cestuis  may  avoid  the  deed.^  In  the  case 
just  cited  the  trustees  conveyed  the  trust  property  to  themselves 
through  a  third  person,  without  actual  intent  to  defraud,  but 
for  a  consideration  really  inadequate.  Considerable  time  had 
elapsed,  there  were  future  interests  in  the  property  represented 
only  by  the  trustee,  and  persons  other  than  the  trustees  had 
acquired  rights  in  the  land  for  value;  wherefore  on  the  whole  the 
court  allowed  the  property  to  be  retained  on  payment  of  the 
difference  between  the  actual  consideration  and  its  fair  value 
with  interest  at  annual  rests.  The  general  rule  is,  that  the 
trustee  shall  not  take  beneficially  by  gift  or  purchase  from  the 
cestui  que  trusty  even  although  the  supposed  trustee  and  pur- 
chaser is  a  mere  intermeddler  and  not  a  regularly  recognized 
trustee ;  ^  the  question  is  not  whether  or  not  there  is  fraud  in 
fact,  the  law  stamps  the  purchase  by  the  trustee  as  fraudulent 
yer  se,^  to  remove  all  temptation  to  collusion  and  prevent  the 
necessity  of  intricate  inquiries  in  which  evil  would  often  escape 
detection,  and  the  cost  of  which  would  be  great.  The  law 
looks  only  to  the  facts  of  the  relation  and  the  purchase.  The 
trustee  must  not  deal  with  the  property  for  his  own  benefit.®  (a) 

'  Yonge  V.  Hooper,  73  Ala.  119.  [Bronson  v.  Thompson,  77  Conn.  214; 
Booth  V.  Bradford,  114  Iowa,  ,562;  Butman  v.  Whipple,  25  R.  I.  578;  Lud- 
ington  V.  Patton,  HI  Wis.  208;  Golson  v.  Dunlap,  73  Cal.  157;  Cole  r. 
Stoke.s,  113  N.  C.  270.] 

'  Morse  v.  Hill,  136  Ma.ss.  60. 

'  Coles  t'.  Trecothick,  9  Ves.  234;  Renew  v.  Butler,  30  Ga.  954;  Cad- 
wallader's  App.,  64  Penn.  St.  293;  Wright  v.  Smith,  23  N.  J.  Eq.  106;  Smith 
V.  Drake,  id.  302. 

*  Wright  ('.  Smith,  23  N.  J.  Eq.  106. 

*  McGaughey  i'.  Brown,  46  Ark.  25.  [Hamilton  v.  Dooly,  15  Utah, 
280,  307;  1  Story's  Eq.  Jur.  (13th  ed.)  §  322.] 

'  King  V.  Remington,  36  Minn.  25;  Baldwin  i'.  Allison,  4  Minn.  11; 

(a)  Or    as    agent    for    another.      Silkstone    &    Haigh    Co.  v.    Edey, 
Harrison  v.   Manson,   95   Va.   593;     [1900]  1  Ch.  167. 
Ludington  v.  Patton,  111  Wis.  208; 

315 


§  195. 


CONSTRUCTIVE   TRUSTS. 


CHAP.  VI. 


So  where  the  trustee  in  selling  the  property  to  a  third  person 
stipulates  that  the  vendee  is  to  sell  it  afterwards  to  the  trustee, 
and  the  agreement  is  carried  out,  the  trustee  holds  still  as  trus- 
tee, and  not  by  an  independent  title  as  other  purchasers  from 
such  vendee  might  have.^  No  trustee  can  directly  or  indirectly 
become  a  purchaser  in  his  own  behalf  of  the  trust  property, 
and  hold  it  against  the  cestui^  [unless  the  cestui  has  consented 
to  the  purchase],  (a)     A  purchase  by  a  trustee  inures  to  the 

Jewett  V.  Miller,  10  N.  Y.  402.  [Feamster  v.  Feamster,  35  W.  Va.  1 ;  Church 
V.  Winton,  196  Pa.  St.  107;  Kenworthy  v.  Equitable  Trust  Co.,  218  Pa. 
St.  286.] 

1  De  Cells  v.  Porter,  59  Cal.  464.     [Darling  v.  Potts,  118  Mo.  506.   See 
Tanney  v.  Tanney,  159  Pa.  St.  277.] 

2  Marshall  v.  Carson,  38  N.  J.  Eq.  250;  Creveling  v.  Fritts,  34  id.  134; 
People  V.  O.  B.  of  S.  B.  B.  Co.,  92  N.  Y.  98. 


(a)  A  distinction  should  be  made 
between  a  trustee's  purchase  di- 
rectly from  a  cestui  and  a  trustee's 
purchase  of  the  trust  property  or  of 
an  outstanding  adverse  interest  in  it. 
In  the  former  case  the  decisions 
already  cited  show  that  the  purchase 
will  be  allowed  to  stand  if  the  trustee 
sustains  the  burden  of  satisfying 
the  court  that  no  unfair  advantage 
was  taken  of  the  cestui  and  that  he 
was  fully  informed  of  everything 
which  might  have  influenced  him 
against  the  transaction  or  to  de- 
mand a  better  price.  See  also 
Branch  v.  Buckley,  109  Va.  784; 
Ungrich  v.  Ungrich,  115  N.  Y.  S. 
413;  Copeland  v.  Bruning,  87  N.  E. 
1000  (Ind.  App.   1909). 

The  same  rule  applies  when  the 
trustee  purchases  the  trust  property 
itself  or  an  outstanding  adverse 
interest  with  the  consent  of  the 
cestuis.  If  he  satisfies  the  court  that 
the  consent  of  the  cestuis  was  fairly 
obtained  without  undue  influence, 
that  the  cestuis  were  sui  juris  and 

316 


fully  understood  all  the  material 
circumstances  and  that  no  advan- 
tage was  taken  by  the  trustee  of  the 
necessities  of  the  cestuis,  the  trustee 
will  be  allowed  to  hold  his  purchase 
for  his  own  benefit.  Mills  v.  Mills, 
63  Fed.  511;  Cole  t;.  Stokes,  113  N.  C. 
270. 

But  when  no  such  consent  of 
the  cestuis  is  shown,  the  fairness  of 
the  transaction  will  not  protect 
the  trustee.  Irrespective  of  the 
fairness  of  the  price  and  the  absence 
of  oppression,  equity  will  grant  a 
cestui  appropriate  relief.  Broder 
V.  Conklin,  121  Cal.  282;  Wing  v. 
Hartupee,  122  Fed.  897;  Mead  v. 
Chesbrough  B'ld'g  Co.,  151  Fed. 
998;  Frazier  v.  Jeakins,  64  Kan. 
615;  Golson  v.  Dunlap,  73  Cal.  157; 
Baker  v.  Lane,  118  S.  W.  963  (Ky. 
1909);  Nabours  v.  McCord,  97  Tex. 
526;  McCord  v.  Nabours,  101  Tex. 
495.  But  see  Warren  v.  Pazolt,  203 
Mass.  328.  Thus  in  Smith  v.  Miller, 
98  Va.  535,  where  one  of  several 
trustees  bid  at  a  public  auction  of 


CHAP.  VI.]      CONTRACTS   WITH    CESTUI    QUE   TRUST. 


[§  195. 


benefit  of  the  cestui  [if  he  so  elects].^    It  is  not,  however,  void 
but  only  voidable  at  the  election  of  the  cestui  que  trust?  (a) 


>  People  V.  Merchants'  B'k,  35  Hun,  97. 

«  Dodge  V.  Stevens,  94  N.  Y.  209;  Gibson  v.  Barbour,  100  N.  C. 
[Shelby  v.  Creighton,  65  Neb.  485.] 


192. 


trust  land  for  the  purpose  of  raising 
the  price  and  with  no  intention  of 
buying  it,  but  it  was  knocked  down 
to  him  and  his  co-trustees  held  him 
to  his  bid  although  he  did  not  want 
to  take  the  land,  it  was  held  that 
the  cestui  could  have  the  sale  to  him 
set  aside. 

In  St.  Paul  Trust  Co.  v.  Strong, 
85  Minn.  1,  the  same  strict  rule 
was  applied  to  a  sale  by  the  trus- 
tee to  the  trust.  In  that  case  a 
trustee  with  funds  of  the  trust  es- 
tate to  invest  turned  over  to  the 
trust  certain  notes  and  mortgages 
which  it  had  bought  on  its  own 
account  but  a  few  days  before.  Al- 
though the  investment  would  have 
been  a  proper  one  if  it  had  not  taken 
the  form  of  a  sale  by  the  trustee  to 
itself  and  there  was  no  doubt  of  its 
fairness,  it  was  held  that  the  cestui 
could  avoid  it.  See  also  In  re  Long 
Island  L.  &  Tr.  Co.,  87  N.  Y.  S. 
65,  92  App.  Div.  1  (affirmed  179 
N.  Y.  520).  In  view  of  this  deci- 
sion it  would  seem  that  a  cestui  can 
avoid  a  transfer  by  a  trustee  of  an 
investment  from  one  trust  to  another 
where   the   same    trustee   acts   for 


(a)  And  even  while  the  title  is  in 
the  trustee,  it  may  be  confirmed  by 
acquiescence  and  lapse  of  time,  as 
well  as  by  the  express  act  of  the 
cestui  que  trust.  Kahn  v.  Chapin, 
152  N.  Y.  305,  309;  Harrington  v. 
Erie  S.  Bank,  101  N.  Y.  257;  Ham- 
mond V.  Hopkins,  143   U.  S.  224; 


both.  But  such  a  transfer  is  not 
absolutely  void.  McLaughlin  v. 
Greene,  198  Mass.  153. 

When  a  trustee  improperly  bids 
in  for  himself  at  pubUc  auction,  the 
cestuis  have  a  choice  of  remedies. 
"They  may  resort  to  a  court  of 
equity,  either  to  compel  a  reconvey- 
ance upon  payment  of  the  purchase 
price,  or  to  require  the  property 
to  be  resold,  or  upon  their  affir- 
mation of  the  sale  if  the  trustee  has 
sold  it  in  excess  of  the  price  paid  by 
him  he  must  account  for  the  proceeds, 
or  if  unsold  they  may  charge  him 
in  his  accounts  vnth  its  actual  value 
at  the  time  of  sale."  Hayes  v. 
Hall,  188  Mass.  510.  See  also  Booth 
V.  Bradford,  114  Iowa,  562;  Marr  v. 
Marr,  73  N.  J.  Eq.  643. 

If  the  trustee  wishes  to  purchase 
the  trust  property  at  a  pubUc  sale, 
either  because  he  is  willing  to  give 
more  for  the  property  than  anybody 
else,  or  because  he  has  interests  in 
the  property  which  he  wishes  to 
protect,  his  proper  course  is  to  ob- 
tain permission  from  court  to  bid 
at  the  sale.  See  Hayes  v.  Hall, 
188    Mass.    510;    Markle's   Estate, 


Hoyt  V.  Latham,  id.  553;  Morse  v. 
Hill,  136  Mass.  60;  Bresee  t;.  Brad- 
field,  99  Va.  331;  Bronson  t-. 
Thompson,  77  Conn.  214;  Mead  v. 
Chesborough  B'ld'g  Co.,  151  Fed. 
998;  Quirk  v.  Liebert,  12  App. 
D.  C.  394.  But  Bee  Frazier  v. 
Jeakins,  64  Kan.  615. 

317 


§  195. 


CONSTRUCTIVE   TRUSTS. 


[chap.  VI. 


But  there  are  exceptions  to  the  rule,  and  a  trustee  may  buy 
from  the  cestui  que  trust,  provided  there  is  a  distinct  and  clear 


182  Pa.  St.  378;  Corbin  v.  Baker, 
167  N.  Y.  128;  Boswell  v.  Coakes, 
23  Ch.  Div.  302,  310. 

It  18  usually  inconsistent  with 
the  duty  which  a  trustee  owes  to 
his  cesiuis  for  him  to  buy  in  for  his 
own  benefit  incumbrances  upon  the 
trust  property  or  outstanding  titles 
which  are  adverse  to  the  interest 
which  he  holds  In  trust,  even  where 
the  sale  is  not  brought  about  or 
controlled  by  him  and  where  he  is 
powerless  to  prevent  it.  After  he 
has  bought  such  a  title  or  incum- 
brance the  cestuis  may  elect  to  treat 
the  purchase  as  made  on  behalf  of 
the  trust  subject  to  the  trustee's 
right  to  reimbursement  for  his 
legitimate  expenditures,  unless  he 
is  able  to  satisfy  the  court  that  the 
cestuis  with  full  knowledge  of  all 
the  circumstances  and  the  legal 
effect  of  his  purchase  assented  to  it 
or  neglected  to  take  steps  to  pur- 
chase for  themselves.  Anderson 
V.  Northrop,  30  Fla.  612,  665; 
Baugh's  Ex'r  v.  Walker,  77  Va.  99; 
Baker  v.  Springfield,  etc.,  Ry.  Co., 
86  Mo.  75;  Mullen  v.  Doyle,  147 
Pa.  St.  512;  McClanahan's  Heirs 
V.  Henderson's  Heirs,  2  A.  K.  Marsh. 
388;  Mead  v.  Chesbrough  B'ld'g  Co., 
151  Fed.  998. 

In  the  absence  of  their  actual 
consent  it  seems  to  be  necessary  for 
the  trustee  to  show  that  if  he  had 
not  purchased,  the  interest  would 
have  gone  to  a  stranger  to  the  trust 
without  any  neglect  or  violation  of 
duty  by  him,  with  the  effect  that 
no  possible  injury  has  been  done 
to  the  cestuis  by  reason  of  his 
becoming   a   purchaser.      See    Fisk 

318 


V.  Sarber,  6  W.  &  S.  18;  Mullen  v. 
Doyle,  147  Pa.  St.  512;  Steinbeck 
V.  Bon  Homme  Mining  Co.,  152 
Fed.  333.  On  general  principles  it 
seems  to  be  inconsistent  with  his 
position  as  fiduciary  to  enter  into 
competition  with  the  cestuis  in  any 
way;  and  even  when  he  has  no 
power  under  the  trust  to  apply 
trust  property  to  the  purchase  of  an 
adverse  interest  or  the  removal  of 
an  incumbrance,  it  may  be  his  duty 
to  apply  to  court  for  the  necessary 
authority.  See  Johns  v.  Herbert, 
2  App.  D.  C.  485;  Stone  v.  Clay, 
103  Ky.  314. 

The  trustee's  disability  to  pur- 
chase does  not  apply  to  collateral 
interests  in  the  property,  which  are 
not  adverse.  Haight  v.  Pearson, 
11  Utah,  51.  Accordingly  it  has 
been  held  that  a  trustee  may  pur- 
chase for  himself  the  interest  of 
a  cotenant,  Hopper  v.  Hopper,  79 
Md.  400,  or  the  reversion  of  lease- 
holds which  are  the  subject  of  the 
trust.  Bevan  v.  Webb,  [1905]  1 
Ch.  620;  Randall  v.  Russell,  3  Mer. 
190.  See  Anderson  v.  Lemon,  8 
N.  Y.  236;  Mitchell  v.  Reed,  61 
N.  Y.  123,  143;  PhiUips  v.  PhiUips, 
29  Ch.  Div.  673.  But  the  trustee  will 
not  be  permitted  to  make  a  profit 
at  the  expense  of  the  interest  which 
he  holds  in  trust,  by  the  purchase 
of  collateral  interests  in  the  same 
property,  Turner  v.  Fryberger, 
94  Minn.  433;  or  even  by  the  pur- 
chase of  property  which  is  entirely 
distinct  from  that  held  in  trust. 
Fulton  V.  Whitney,  66  N.  Y.  548. 

The  courts  do  not  favor  the 
trustee's    purchase    of     a     cestui'g 


CHAP.  VI. J       CONTRACTS    WITH    CESTUI    QUE   TRUST. 


[§  195. 


contract,  ascertained  after  a  jealous  and  scrupulous  examina- 
tion of  all  the  circumstances;  that  the  cestui  que  trust  intended 
the  trustee  to  buy,  and  there  is  fair  consideration  and  no  fraud, 
no  concealment,  no  advantage  taken  by  the  trustee  of  informa- 
tion acquired  by  him  in  the  character  of  trustee.'    The  trustee 

'  Wright  V.  Smith,  23  N.  J.  Eq.  106;  Bryan  v.  Dunran,  11  Ca.  67;  Dob- 
eon  t;.  Racey,  3  Sandf.  61;  Paillon  v.  Martin,  1  id.  569;  Brackenridge  v. 
Holland,  2  Blackf.  377;  Stuart  v.  Kissam,  2  Barb.  494;  Braman  v.  Oliver,  2 
Stewart,  47;  Julian  v.  Reynolds,  8  Ala.  680;  Stallings  v.  Foreman,  2  Hill, 
Ch.  401;  Pratt  v.  Thornton,  28  Maine,  355;  McCartney  v.  Calhoun,  17  Ala. 
301;  Marshall  v.  Stevens,  8  Humph.  159;  Beeson  v.  Beeson,  9  Barr,  279, 
McKinley  v.  Irvine,  14  Ala.  681;  Famam  v.  Brooks,  9  Pick.  212;  Lyon  v. 
Lyon,  8  Ired.  Eq.  201;  Harrington  i'.  Brown,  5  Pick.  519;  Jennison  v.  Hap- 
good,  7  Pick.  1;  Dunlap  v.  Mitchell,  10  Ohio,  117;  Scott  v.  Freoland,  7  Sm. 
&  M.  410;  Pennock's  App.,  4  Penn.  St.  446;  Bruch  v.  Lantz,  2  Rawle,  392; 
Field  V.  Arrowsmith,  3  Humph.  442;  Monro  v.  Allaire,  2  Caines'  Cas.  163; 
Salmon  v.  Cutts,  4  De  G.  &  Sm.  131;  Harrison  v.  Guest,  6  De  G.,  M.  &  G. 
431;  Herbert  v.  Smith,  6  Lans.  493;  Birdwell  v.  Cain,  1  Cold.  301;  Rice  v. 
Cleghom,  21  Ind.  80;  Johnson  v.  Bennett,  39  Barb.  37;  Buel  v.  Buckingham, 
16  Iowa,  284;  Brown  v.  Cowell,  116  Mass.  465;  post,  §  428;  Graves  i-.  Water- 


beneficial  interest  at  a  judicial  sale 
or  a  mortgagee's  sale.  Turner  v. 
Butler,  126  Mo.  131;  Petrie  i;. 
Badenoch,  102  Mich.  45;  Appeal 
of  Ricketts,  12  A.  60  (Pa.  1888). 
But  see  Kern  v.  Kem,  36  Or.  5; 
Bush  V.  Webster,  72  S.  W.  364 
(Ky.  1903). 

The  general  rule  is  that  a  tenant 
in  common  or  a  tenant  for  life  will 
not  be  permitted  to  purchase  an 
outstanding  title  or  incumbrance 
on  the  common  property  and  then 
set  it  up  against  his  cotenant  or 
the  remainder-man;  but  he  will 
usually  hold  subject  to  the  right 
of  the  others  who  are  interested 
with  him  in  the  property  to  elect 
to  contribute  proportionately  to 
the  expense  and  to  share  in  the 
benefit.  Morrison  i;.  Roehl,  215  Mo. 
545;  Keller  i;.  Fenske,  123  Wis.  435; 
Downing    v.    Hartshorn,    69    Neb. 


364;  First  Cong.  Church  v.  Terry, 
130  Iowa,  513;  Griffith  v.  Owen, 
[1907]  1  Ch.  195. 

When  a  tenant  for  hfe  or  any 
other  person  who  haa  the  duty  of 
paying  taxes  allows  the  land  to 
be  sold  for  taxes  and  purchases, 
either  at  the  tax  sale  or  from  a 
holder  of  the  tax  title,  his  purchase 
amounts  to  no  more  than  payment 
of  the  taxes  or  redemption.  Blair 
V.  Johnson,  215  111.  552;  Magness 
V.  Harris,  80  Ark.  583;  Cra\\i<)rd  t;. 
Meis,  123  Iowa,  610;  Blake  t;. 
O'Neal,  63  W.  Va.  483.  See  also 
Boon  V.  Root,  137  Wis.  451;  Lewis 
V.  Wright,  148  Mich.  290. 

A  life  beneficiary  is  under  no 
disabiUty  to  make  an  honest  pur- 
chase from  a  trustee  who  has  power 
of  sale.  Albany  Exchange  Bank  i'. 
Brass,  59  App.  Div.  (N.  Y. )  370. 

319 


§  195.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

must  clear  the  transaction  of  every  shadow  of  suspicion/  and 
if  he  is  an  attorney  he  must  show  that  he  gave  his  cUent,  who 
sold  to  him,  full  information  and  disinterested  advice.^  Lord 
Eldon  said  he  admitted  that  the  exception  was  a  difficult  case 
to  make  out.^  And  it  may  be  said  generally  that  it  is  difficult  to 
find  a  case  where  such  a  transaction  has  been  sustained.^  Any 
withholding  of  information,^  or  ignorance  of  the  facts  or  of  his 
rights  on  the  part  of  the  cestui,^  or  any  inadequacy  of  price,^  will 
make  such  a  purchaser  a  constructive  trustee.  The  cestui  que 
trust  must  know  that  he  is  dealing  with  the  trustee.  Therefore, 
if  the  trustee  purchases  through  an  agent  or  third  person,  and 
the  cestui  que  tru^t  does  not  know  the  trustee  in  the  transaction, 
the  contract  will  be  void,  or  a  trust  in  the  agent.^  The  rule  is 
that  the  trustee  shall  not  purchase  directly  or  indirectly;  there- 
fore if  the  trustee  conveys  to  a  stranger,  and  the  stranger  con- 
veys back  to  the  trustee,  the  transaction  is  equally  void.®  (a) 

man,  63  N.  Y.657;Gol8ont;.  Dunlap;73Cal.  IC/jMiggett'sApp.,  lOOPem;, 
St.,  520. 

1  Lathrop  v.  Pollard,  6  Col.  424;  Jones  v.  Lloyd,  117  111.  597;  Porter  v. 
Woodruff,  36  N.  J.  Eq.  174;  Everett  v.  Henry,  67  Tex.  402.    [Cole  v.  Stokes, 

113  N.  C.  270;  Bronson  v.  Thompson,  77,  Conn.  214;  Booth  i;.  Bradford, 

114  Iowa,  562;  Butman  v.  Whipple,  25  R.  I.  578;  Ludington  v.  Patton,  111 
Wis.  208;  Dougan  v.  Macpherson,  [1902]  A.  C  197;  Mills  v.  Mills,  63  Fed. 
51Lj 

2  Dunn  V.  Dunn.  42  N.  J.  Eq.  431. 
'  Coles  V.  Trecothick,  9  Ves.  246. 

*  2  Sugd.  V.  &  P.  (8  Am.  ed.)  687.    [But  see  supra,  note  a,  p.  316.] 

»  Fox  V.  Mackreth,  2  Bro.  Ch.  400;  Scott  v.  Davis,  4  M.  &  Cr.  87;  Heme 
V.  Meeres,  1  Vern.  465;  Cook  v.  Sherman,  4  McCrary,  20. 
"  Leach  v.  Leach,  65  Wis.  284. 

^  Pugh  V.  Bell,  1  J.  J.  Marsh.  398;  Morse  v.  Royal,  12  Ves.  373. 
8  Randall  v.  Errington,  10  Ves.  423.     [Tyler  v.  Sanborn,  128  111.  136.) 

*  Dobson  V.  Racey,  3  Sandf.  61. 

(a)  If,  however,  the  original  App.  609.  But  the  court  will  care- 
sale  by  the  trustee  to  the  third  per-  fully  scrutinize  the  transaction  for 
son  was  in  good  faith  and  with  no  coVusion.  Chorrmann  v.  Bach- 
understanding  that  the  latter  should  mann,  104  N.  Y.  S.  151,  119  App. 
sell  back  to  the  trustee,  the  trus-  Div.  146;  Re  Postlethwaite,  59 
tee's  purchase  cannot  be  avoided.  L.  T.  58. 
Drj'  Goods  Co.  v.  GJf^eon,  80  Mo.  It  has  been  held  that  a  trustee 

320 


CHAP.  VI.]       CONTRACTS   WITH   CESTUI    QUE   TRUST.  [§  195. 

So,  if  the  trustee  purchases  at  auction  of  the  cestui  que  trust,  the 
presumption  is  strongly  against  the  transaction/  and  the  pur- 
chase is  generally  void.^  And  one  of  several  trustees  is  under 
the  same  disabilities : '  they  cannot  convey  to  each  other.'*  And 
so,  if  the  purchase  is  made  by  an  agent  or  attorney  of  the  trus- 
tee.^ Nor  can  the  trustee's  wife  purchase.^  Nor  can  the 
trustee  purchase  as  agent  for  another.^  The  cestui  que  trust  is 
not  estopped  to  avoid  such  sales,  although  he  has  taken  a 
legacy  under  the  will  of  the  trustee,  if  such  legacy  is  not  a  charge 
upon  the  trust  estate  and  is  not  otherwise  connected  with  the 
trust  fund.^  If  such  sales  are  avoided,  upon  a  reconveyance 
the  trustee  is  entitled  to  receive  back  all  the  purchase-money 


*  Att.  Gen.  v.  Dudley,  Coop.  146;  Whelpdale  v.  Cookson,  1  Vee.  9;  Lister 
t;.  Lister,  6  Ves.  631;  Sanderson  v.  Walker,  13  Ves.  601;  Downes  v.  Graze- 
brook,  3  Mer.  200;  Campbell  v.  Walker,  3  Ves.  378;  Whitcomb  v.  Minichin,  5 
Madd.  91. 

^  Roberts  v.  Roberts,  65  N.  C.  27.    [See  supra,  note  a,  p.  316.] 

»  Whichcote  v.  Lawrence,  3  Ves.  740.  [Nabours  v.  McCord,  97  Tex. 
526.] 

<  Boynton  v.  Brastow,  53  Maine,  362.    [Smith  v.  Miller,  98  Va.  535.] 

»  Campbell  v.  Walker,  5  Ves.  378;  Cox  v.  John,  32  Ohio  St.  532. 

6  Dundas's  App.,  64  Penn.  St.  325;  Leitch  v.  Wells,  48  Barb.  637.  But 
it  has  been  held  that  the  trustee's  wife  might  purchase  where  the  trust 
property  was  sold  under  a  judicial  decree  of  sale,  in  the  absence  of  fraud 
and  collusion,  if  the  sale  is  affirmed  by  a  decree  of  the  court  upon  a  report 
of  the  proceedings.  Armstrong's  App.,  69  Penn.  St.  409.  [Frazier  v. 
Jeakins,  64  Kan.  615;  Hayes  v.  Hall,  188  Mass.  510;  Mortgage  Co.  v. 
Clowney,  70  S.  C.  229;  Tyler  v.  Sanborn,  128  111.  136.] 

'  North  Baltimore,  &c.  Ass'n  v.  Caldwell,  25  Md.  420;  James  v.  James, 
55  Ala.  525.  [Harrison  v.  Manson,  95  Va.  593;  Ludington  r.  Patton,  111 
Wis.  208.] 

8  Smith  V.  Townshend,  27  Md.  368. 

who  has  entered  into  a  binding  con-  and  if  they  complete  their  bargain, 

tract  to  sell  trust  property  to  a  third  the  transaction  is  voidable  by  the 

person  cannot  properly  purchase  the  cestui,  just  as  if  the  original  sale  had 

vendee's  right  to  a  conveyance  while  been  directly  to  the  trustee.    Wing 

the     contract     remains    executory,  v.  Hartupee,  122  Fed.  897;  Williams 

The  vendee  cannot  hold  the  trustee  v.  Scott,  [1900]  A.  C.  499;  Parker  i;. 

to  his  bargain  to  take  the  property;  McKenna,  10  Ch.  96. 
Delves  v.  Gray,  [1902]  2  Ch.  606; 

VOL.  I.— 21  321 


§  195.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

and  all  other  claims  which  he  may  have  against  the  estate.^  (a) 
And  he  may  purchase  of  the  cestui  que  trust  property  not  em- 
braced in  the  trust  fund,  care  being  taken  that  the  influence  of 
the  relation  does  not  affect  the  transaction.^  Sometimes  the 
trustee  is  allowed,  by  decrees  of  sale,  to  be  a  bidder  for  the 
property  at  his  own  auction;  in  such  case  the  trustee  must 
show  the  utmost  diligence  and  good  faith  for  the  interest  of 
the  cestui  que  trust?  Where  a  trustee  has  an  interest  to  protect 
by  bidding  at  a  sale  of  trust  property,  he  may  ask  the  court  for 
permission  to  bid,  and  when  this  is  granted  after  hearing  all 
parties  interested,  he  can  bid,  and  obtain  a  perfect  title.^  And 
a  trustee  may  buy  at  a  sale  procured  by  some  one  else,  not 
controlled  by  himself,  in  good  faith  to  protect  the  interests  of 
himself  and  others.^  (6)  A  trustee  who  has  bona  fide  sold  the 
property  to  a  third  person  may  afterwards  buy  it  for  himself,^ 
and  the  prohibition  does  not  apply  where  the  sale  of  the  prop- 
erty is  by  a  judgment  creditor  of  the  cestui  through  the  sheriff, 
and  not  the  trustee's  sale.^     Acquiescence,  lapse  of  time,  or 

»  Elliott  V.  Pool,  6  Jones,  Eq.  42. 

*  Eldredge  v.  Smith,  34  Vt.  484. 

'  Cadwallader's  App.,  64  Penn.  St.  293;  Colgate  v.  Colgate,  23  N.  J. 
Eq.  372. 

*  Scholle  V.  Scholle,  101  N.  Y.  167.  [Markle's  Estate,  182  Pa.  St.  378; 
Boswell  V.  Coaks,  23  Ch.  Div.  302,  310;  Hayes  v.  Hall,  188  Mass.  510.] 

6  Lusk's  App.,  108  Penn.  St.  152;  Allen  v.  GUlette,  127  U.  S.  589.  [See 
supra,  note  o,  p.  316  et  seq.] 

6  Welch  V.  McGrath,  59  Iowa,  519.  [See  Tanney  v.  Tanney,  159  Pa.  St. 
277;  Dry  Goods  Co.  v.  Gideon,  80  Mo.  App.  609.] 

^  Clark  V.  Holland,  72  Iowa,  36. 

(a)  So  the  assignee  of  a  contract  latter's  approval  thereof.     Stewart 

to  purchase  real  estate,  who  receives  v.  Fellows,  128  111.  480. 

it  in  trust  for  the  assignor,  has  an  (6)  An  executor  is  not  precluded 

equitable  lien  on  the  land,  when  he  from  purchasing  at  the  sale  of  an 

receives   the  title,  for  so  much  of  heir's  interest  in  real  estate,  that  not 

moneys  paid  as  he  necessarily  ad-  being  within  his  control  as  trustee, 

vanced  to  prevent  a  forfeiture  imder  but    the   court    will   scrutinize    the 

the  contract  to  purchase,  and  pre-  transaction     for     any      unfairness, 

serve  the  interest  of  his  assignor,  Haight  v.  Pearson,  11  Utah,  51. 
though  he  did  not  ask  or  receive  the 

322 


CHAP.  VI.]         RENEWAL    OF    LEASES    BY    TRUSTEES.  [§   196. 

express  act  of  the  cestui  may  make  the  trustee's  title  good.' 
Matters  of  indebtedness  growing  out  of  relations  of  trust  and 
confidence  are  subject  to  adjustment  and  settlement  the  same 
as  claims  arising  in  other  transactions.'^ 

§  196.  If  among  the  assets  of  the  trust  estate  there  are  leases, 
the  trustee  cannot  renew  them  in  his  own  name;  and  if  he 
renews  them  in  his  own  name,  he  must  hold  them  by  a  construc- 
tive trust  for  the  same  persons  beneficially  interested  in  the 
old  leases.^  Even  if  the  lessor  refuse  to  renew  the  lease  for  the 
benefit  of  the  cestui  que  trust,  and  the  trustee  takes  it  in  his  own 
name,  he  is  still  a  constructive  trustee,  and  he  must  account  for 
all  the  income  and  profits,  (a)  This  is  on  the  ground  that  a 
trustee  should  be  under  no  temptations  to  make  any  contracts 
in  relation  to  the  trust  property,  even  collaterally,  on  his  own 
private  account.^    The  same  rule  extends  to  all  persons  who 

*  Harrington  ;;.  Erie  County  Savings  Bank,  101  N.  Y.  257.  [Hammond 
t;.  Hopkins,  143  U.  S.  224,  252;  Hoyt  v.  Latham,  143  U.  S.  553;  Kahn  v. 
Chapin,  152  N.  Y.  305.] 

^  Clute  V.  Frasier,  58  Iowa,  273. 

^  Keech  v.  Sandford,  commonly  called  the  Rumford  Market  Case,  Sel. 
Ch.  Cas.  61 ;  1  Lead.  Cas.  Eq.  36;  Eng.  &  Am.  notes;  Griffin  v.  Griffin,  1  Sch. 
&  Lef.  354;  Pickering  v.  Vowles,  1  Bro.  Ch.  198;  Pierson  v.  Shore,  1  Atk. 
480;  Nesbitt  v.  Tredennick,  1  B.  &  B.  46;  Turner  v.  HiU,  11  Sim.  14;  Whal- 
ley  V.  Whalley,  1  Vera.  484;  Holt  v.  Holt,  1  Ch.  Cas.  190;  Anon.,  2  id.  207; 
Abney  v.  Miller,  2  Atk.  597;  Killick  v.  Flexney,  4  Bro.  Ch.  161;  Luckin  v. 
Rushworth,  Finch,  392;  MuIvaneytJ.  Dillon,  1  B.  &  B.  409;  Fosbrook  v.  Bal- 
guy,  1  M.  &  K.  226;  Owen  v.  Wilhams,  Amb.  794;  Fitzgibbon  v.  Scanlan,  1 
Dow,  261;  Bradford  v.  Brownjohn,  L.  R.  3  Ch.  714.  [The  new  lease  "is 
treated  as  a  graft  or  addition  to  the  trust  property  and  itself  forms  part  of 
the  trust  property."  Bevan  v.  Webb,  [1905]  1  Ch.  620.  See  also  infra, 
§  538  and  notes.] 

*  Keech  v.  Sandford,  Sel.  Ch.  Cas.  61 ;  Griffin  v.  Griffin,  1  Sch.  &  Lef. 
353. 

(a)  The   trust   which    the   court  in  which  the  renewal  has  been  ob- 

fastens  upon  the  new  lease  is  not  tained    by    virtue    of    the    original 

confined  to  the  renewal  by  a  person  lease.     In  re  Lulham,  53  L.  J.  Ch. 

who   was  at  the  time  in  a  fiduciary  (n.  s.)  928,  931. 
position,  but  extends  to  Other  cases 

323 


§  196.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

have  only  a  partial  interest  in  property:  they  shall  not  take 
advantage  of  their  situation  to  renew  leases  in  their  own  names; 
as,  tenants  for  life,^  mortgagees,^  devisees  subject  to  debts, 
legacies,  or  annuities,^  joint  tenants,^  or  partners ;  ^  and  where 
there  was  a  mere  tenancy  at  will,  it  was  held  that  the  tenant 
could  not  renew  in  his  own  name,  and  deprive  the  remainder- 
man of  what  might  come  to  him.^  And  if,  instead  of  renewing, 
the  trustee  or  other  person  sell  the  right  to  renew  for  money,  he 
must  account  for  the  price  to  the  persons  beneficially  interested. -^ 
Nor  can  an  agent  acting  for  the  trustee  renew  in  his  own  name.* 
The  same  rule  applies  when  the  trustee  of  an  equity  of  redemp- 
tion becomes  the  purchaser  in  a  foreclosure  suit,^  and  to  the 
purchase  by  a  trustee  of  any  property,  not  a  part  of  the  trust 
fund,  which  has  the  necessary  effect  to  diminish  the  trust  fund.** 

1  Eyre  v.  Dolphin,  2  B.  &  B.  290;  Rawe  v.  Chichester,  Amb.  719;  Coffin 
V.  Fernyhough,  2  Bro.  Ch.  29 Ij  Taster  v.  Marriott,  Amb.  668;  James  v.  Dean, 
11  Ves.  383;  15  Ves.  236;  Kempton  v.  Packman,  7  Ves.  176;  Giddings  t'. 
Giddings,  3  Russ.  241;  Crop  v.  Norton,  9  Mod.  233;  Buckley  v.  Lanauze, 
Llo.  &  Goo.  t.  Plunk.  327;  Tanner  v.  Elworthy,  4  Beav.  487;  Waters  v. 
Bailey,  2  Y.  &  C.  Ch.  218;  Yem  i;.  Edwards,3K.&  J.564;  1  DeG.&  J.598; 
Brookman  v.  Hales,  2  V.  &  B.  45.  [See  PhiUips  v.  PhiUips,  29  Ch.  Div.  673; 
In  re  Biss,  [1903]  2  Ch.  40;  infra,  §  538,  note.] 

2  Rushworth's  Case,  Freem.  13;  Nesbitt  v.  Tredennick,  1  B.  &  B.  46. 

3  Jackson  v.  Welch,  Llo.  &  Goo.  t.  Plunk.  346;  Winslow  v.  Tighe,  2  B.  & 
B.  195;  Stubbs  v.  Roth,  id.  548;  Webb  v.  Lugar,  2  Y.  &  C.  247;  Jones  v. 
Kearney,  1  Conn.  &  Laws.  34. 

«  Palmer  v.  Young,  1  Vem.  276.  [In  re  Biss,  [1903]  2  Ch.  40;  In  re  Lul- 
ham,  53  L.  J.  Ch.  928.  But  see  Tygart  v.  Wilson,  39  App.  Div.  (N.  Y.)  58; 
Chittenden  v.  Witbeck,  50  Mich.  401;  Phillips  v.  Reeder,  18  N.  J.  Eq.  95. 
See  infra,  §  538,  note.] 

"  Fetherstonhaugh  v.  Fenwick,  17  Ves.  298;  Ex  parte  Grace,  1  Bos.  & 
P.  376;  Clegg  v.  Fishwick,  1  Macn.  &  G.  294,  299,  Am.  ed.  Perkins,  note  1; 
Clegg  V.  Edmondson,  8  De  G.,  M.  &  G.  787.  [Sneed  v.  Deal,  53  Ark.  152; 
Leach  v.  Leach,  18  Pick.  68,  76;  Mitchell  v.  Reed,  61  N.  Y.  123;  Johnson's 
Appeal,  115  Pa.  St.  129.] 

•  James  v.  Dean,  11  Ves.  383;  15  Ves.  236;  Re  Tottenham,  16  Ired. 
Ch.  118. 

^  Owen  V.  Williams,  Amb.  734. 

*  Edwards  v.  Lewis,  3  Atk.  538. 

»  Hubbell  V.  Medbury,  53  N.  Y.  98;  Terrett  v.  Crombie,  6  Lans.  83. 
[See  note  a  in  §  195  (on  p.  318).] 
^  Fulton  V.  Whitney,  67  N.  Y.  548. 

324 


CHAP.  VI. J       CONTRACTS   WITH    CESTUI    QUE   TRUST.  [§  197. 

§  197.  It  is  thus  seen  that  the  rule  against  purchasing  by 
trustees,  of  the  cestui  que  trust,  amounts  almost  to  prohibition; 
for  if  a  trustee  purchases  the  property,  and  sells  it  at  a  profit, 
he  must  account  for  it  as  a  trustee;  not  because  there  was  any 
fraud  in  the  transaction,  but  because  it  is  against  the  policy  of 
the  law  to  allow  such  transactions  [without  the  consent  of  the 
cestui  given  freely  after  he  has  been  fully  informed.]^  Nor  is  it 
material  that  there  should  be  an  advantage,  or  profit,  arising 
out  of  a  purchase  by  the  trustee  from  the  cestui  que  trust.  It 
is  not  necessary  to  prove  such  advantage  or  profit:  it  is  enough 
to  show  the  relation  and  the  purchase.  The  trustee  can  make 
no  profit  from  his  management  of  the  estate,  and  he  is  bound 
not  to  put  himself  in  any  position  where  his  private  interests 
may  conflict  with  the  interests  of  the  cestui  qv£  trust.^  (a)     If  a 

1  Hawley  v.  Cramer,  4  Cow.  117;  Prevost  v.  Gratz,  1  Pet.  66,  367;  6 
Wheat,  481;  Edwards  v.  Meyrick,  2  Hare,  60;  Hamilton  v.  Wright,  9  CI. 
&  Fin.  Ill;  Fox  v.  Mackreth,  2  Bro.  Ch.  400;  1  Cox,  310;  John  r.  Bennett, 
39  Barb.  237;  Kent  v.  Chalfant,  7  Minn.  487;  Tiffany  v.  Clark,  1  N.  Y.  Sup. 
Ct.  Add.  9;  Handlin  v.  Davis,  81  Ky.  34.  An  administrator  who  has  bid  in, 
in  his  own  name,  at  a  foreclosure  of  a  mortgage  belonging  to  his  intestate, 
under  the  act  authorizing  him  to  do  so,  holds  in  trust,  and  cannot  sell 
without  the  authority  of  the  court.  Rafferty  v.  Mallory,  3  Biss.  362.  But 
see  Frouberger  v.  Lewie,  79  N.  C.  426,  where  an  exception  to  the  rule  is  said 
to  be  in  case  the  trustee  has  a  personal  interest  in  the  property,  when  he 
may  bid  at  the  sale  to  protect  that  interest;  but  then  he  ought  to  obtain 
the  sanction  of  the  court. 

2  Ex  parte  Lacey,  6  Ves.  625;  Chesterfield  v.  Janssen,  2  Ves.  138;  Camp- 
bell V.  Walker,  5  Ves.  678;  13  Vce.  138;  Cane  v.  Allen,  2  Dow.  289;  Slade  v. 
Van  Vechten,  11  Paige,  21 ;  Davoue  v.  Fanning,  2  Johns.  Ch.  252;  Michoud  v. 
Girod,  4  How.  503;  Dobson  v.  Racey,  3  Sandf.  61;  Morse  v.  Royal,  12  Vos. 
355;  Ex  parte  James,  8  Ves.  337;  Ex  parte  Bennett,  10  Ves.  381;  Saagar  v. 
Wilson,  4  S.  &  W.  102.  Such  transactions  are  fraudulent  per  se.  Nelson 
V.  Hoyvner,  66  111.  487.  The  attorney  of  the  trustee  comes  equally  within 
the  prohibition,  and  it  makes  no  difference  in  the  apphcation  of  the  rule 
that  a  third  person  has  conducted  the  business  and  shares  in  the  profits. 
Cox  V.  John,  32  Ohio  St.  532.    [Infra,  §  427  et  acq.] 

(a)  The  last  part  of  this  state-  trustee   is   not  disabled   from   pur- 

ment  seems  to  need  some  quahfi-  suing  his   private   business   for  his 

cation.     Except  so  far  as  concerns  own    benefit    merely    because     his 

dealing  with  the  trust  property,  the  interests  conflict  with  those  of  the 

325 


j^  198.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

trustee  purchases  the  trust  property,  the  cestui  que  trust  may- 
have  the  purchase  set  aside  and  the  property  resold.'  The 
general  rule  is  that  only  lapse  of  time  or  ratification  can  make 
the  purchase  good,  and  the  burden  of  proof  is  on  the  trustee  to 
show  laches  or  acquiescence.^  But  if  he  has  made  a  fair  sale  to 
a  third  party,  it  has  been  held  that  the  trustee  could  repurchase 
from  his  [vendee],  though  the  transaction  will  be  jealously 
scrutinized  in  equity.^ 

§  198.  The  cestui  que  trust  alone  can  avoid  such  convey- 
ances.'* (a)  They  are  at  his  option.  And  if  they  are  found  to 
be  beneficial  to  him  or  otherwise,  he  may  compel  the  trustee 


1  Sypher  v.  McHenry,  18  Iowa,  232.  [Hayes  v.  Hall,  188  Mass.  510.] 
After  the  trust  is  ended  and  the  trustee  has  made  a  sale  under  his  power, 
the  trustee,  acting  in  good  faith,  may  deal  with  the  property  and  become 
the  owner  of  what  was  trust  property  by  purchase  or  otherwise.  Bush  v. 
Shearman,  80  111.  160.  But  the  court  will  carefully  see  that  good  faith 
is  observed;  and  a  settlement  of  guardian's  account  and  conveyance  of 
minor's  property  on  the  day  he  becomes  of  age,  and  while  he  is  unadvised  of 
his  rights,  under  the  influence  and  control  of  others,  is  not  binding,  and 
can  only  be  upheld  by  clear  proof  that  it  is  just  and  equitable.  Berkmeyer 
V.  Kellerman,  32  Ohio  St.  239.  See  Sugd.  V.  &  P.  (8th  Am.  ed.)  685  et 
seq.,  where  the  rules  are  clearly  stated  by  Lord  St.  Leonards,  and  the  Ameri- 
can cases  are  all  collected  and  arranged  by  Hon.  J.  C.  Perkins. 

2  Pearce  v.  Gamble,  72  Ala.  341. 

■'  Foxworth  V.  White,  72  Ala.  224.  [Dry  Goods  Co.  v.  Gideon,  80  Mo. 
App.  609.  See  Chorrman  v.  Bachmann,  104  N.  Y.  S.  151,  119  App.  Div. 
146;  Re  Postlethwaite,  59  L.  T.  58,  supra,  §  195.] 

*  Rice  V.  Cleghorn,  21  Ind.  80.  [Bronson  v.  Thompson,  77  Conn.  214; 
Bresee  v.  Bradfield,  99  Va.  331.] 

trust.     Thus   it  has  been  held  that  resignation    of    the    trustee    or   his 

a  trustee  who  had  been  directed  to  removal  in  case  he  refuses  to  resign, 

continue  a  testator's  business  could  Moore  v.  M 'Glynn,  [1S91]  1  Ir.  74. 

not   be    enjoined    from    opening    a  See  Matter  of  Hirsch,  IIG  App.  Div. 

business  of  the  same  nature  which  (N.  Y.)  367,  infra,  §  427,  note. 

would    to    some    extent    compete  (a)   In    Bresee  v.    Bradfield,    99 

with  the  trust  business.     Moore  v.  Va.  331,  it  was  held  that  the  cred- 

M'Glynn,  [1894]  1  Ir.  74.    But  the  itors  of  the  cestui  could  not  avoid 

existence  of  such  a  conflict  of  inter-  the  conveyance  when  there  was  no 

ests  would  be  a  good  cause  for  the  actual  fraud. 

326 


CHAP.  VI.]   RULE  NOT  APPLICABLE  TO  DRY  TRUSTEES.    [§  199. 

to  complete  a  purchase  and  take  the  estate  and  pay  the  purchase- 
money.' 

§  199.  The  above  rule  does  not  apply  to  mere  naked  or  dry 
trustees  who  practically  have  no  interest  in  or  power  over  the 
estate,  as  trustees  to  preserve  contingent  remainders.^  (a) 
Where  the  trustee  has  no  duty  to  perform,  as  where  one  is 
trustee  in  fee  for  another  in  fee,  having  no  authority  over  the 
estate,  and  standing  in  no  relation  of  influence  over  the  cestui 
que  trust,  the  person  named  as  trustee  may  purchase;^  and  if 
the  cestui  que  tru^t  make  all  the  arrangements  for  the  sale,  such 
as  plans,  notices,  choice  of  auctioneer,  terms  and  conditions,  and 
the  trustee  is  in  no  situation  to  obtain  any  exclusive  informa- 
tion, the  court  will  deal  with  the  contract  as  with  contracts 
between  other  parties.^  A  mortgagee  may  purchase  of  the 
mortgagor  under  a  decree  of  foreclosure  or  otherwise,^  but  if 
the  mortgage  contains  a  power  of  sale,  the  mortgagee  becomes 
a  trustee  of  the  power  of  sale  for  the  mortgagor,  and  neither  he 
nor  his  agents,  attorneys,  or  auctioneers,  can  purchase  for 
themselves  or  others;  or,  if  they  do,  they  become  constructive 
trustees.^  (6)    And  so  the  pledgee  of  stock  cannot  buy  the  same 

1  Thorp  V.  McCulIum,  1  Gilm.  624;  McClure  v.  Miller,  1  Bail.  Ch.  107; 
Lister  v.  Lister,  6  Ves.  631;  Ex  parte  Reynolds,  5  Ves.  707;  Sanderson  v. 
Walker,  13  Ves.  603;  Larco  v.  Casaneuava,  30  Cal.  560. 

2  Parker  v.  White,  11  Ves.  226;  Naylor  v.  Winch,  1  S.  &  S.  567;  Sutton 
V.  Jones,  15  Ves.  587;  Pooley  v.  Quilter,  4  Drew.  189.  [Inlow  v.  Christy,  187 
Pa.  St.  186.] 

»  Pooley  I'.  Quilter,  4  Drew.  189. 

*  Coles  V.  Trecothick,  9  Ves.  248;  Monro  v.  Allaire,  2  Caines'  Cas.  183; 
Salmon  v.  Cutts,  4  De  G.  «fe  Sm.  131. 

6  Iddings  V.  Bruen,  4  Sandf.  Ch.  223;  Murdoch's  Case,  2  Bland,  461; 
Knight  V.  Majoribanks,  2  Mac.  &  G.  10;  2  Hall  &  T.  308;  Rhodes  v.  Sander- 
son, 36  Cal.  414. 

«  Dobson  V.  Racey,  4  Seld.  216;  Waters  v.  Groom,  11  CI.  &  Fin.  684; 
Mapps  V.  Sharpe,  32  111.  13;  Murray  v.  Vanderbilt,  39  Barb.  140;  Black- 
Co)  So  also  of  a   trustee  who  is  (6)  In    Massachusetts,    a    mort- 
only    a    stakeholder.      Halman     i'.      gage  with  power  of  sale  usually  au- 
Burlen,  198  Mass.  494.                            thorizes  the  mortgagee  to  become  a 

327 


§   199.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

even  at  the  broker's  board.'  Where  land  is  devised  to  one 
charged  with  the  payment  of  an  annuity  to  another  for  Hfe, 
the  devisee  does  not  stand  in  the  position  of  trustee  for  the  annu- 

ley  V.  Fowler,  31  Cal.  326;  Olcott  v.  Tioga  R.  R.  Co.,  27  N.  Y.  546;  EUiott 
V.  Wood,  53  Barb.  285;  Thornton  v.  Jarvin,  43  Mo.  153;  Wall  v.  Town,  45  111. 
493;  Robinson  v.  Cudwin,  41  Ala.  693;  Allen  v.  Chatfield,  3  Minn.  435; 
Montsigue  v.  Dawea,  14  Allen,  369.  See  Bailey  v.  .^tna  Insurance  Co.,  10 
Allen,  286;  Fowle  v.  Merrill,  10  Allen,  350;  Smith  v.  Provin,  4  Allen,  516; 
Woodlee  v.  Burch,  43  Mo.  231 ;  Dyer  v.  Shurtleff,  112  Mass.  165.  See  Scott 
V.  Mann,  33  Tex.  721.  [Douthit  v.  Nabors,  133  Ala.  453;  Payton  v.  Mc- 
Phaul,  128  Ga.  510,  517;  Nichols  v.  Otto,  132  lU.  91;  Patten  v.  Pearson,  57 
Me.  428;  Korns  j;.Shaffer,27  Md.83;  Houston  ?^.National  Mut.B'ld'gAss'n, 
80  Miss.  31;  McNees  v.  Swaney,  60  Mo.  388;  Very  v.  Russell,  65  N.  H. 
646 ;  Rich  v.  Morisey,  149  N.  C.  37.]  But  a  second  mortgagee  may  purchase 
under  a  power  of  sale  contained  in  a  prior  mortgage.  Parkinson  v.  Han- 
bury,  1  Dr.  &  Sm.  143;  2  De  G.,  J.  &  S.  455;  Shaw  v.  Bunney,  34  L.  J.  Ch. 
257;  11  Jur.  (n.  s.)  99;  2  De  G.,  J.  &  S.  468;  Kirkwood  v.  Thompson,  11 
Jur.  (n.  s.)  385;  2  De  G.,  J.  &  S.  613.  And  it  is  said  that  the  administrator 
of  the  mortgagee  may  purchase.  Woodlee  v.  Burch,  43  Mo.  231.  And  so 
a  trustee  may  buy  the  equity  of  redemption  in  property  on  which  he  holds 
a  mortgage  as  trustee.  Britton  v.  Lewis,  8  Rich.  Eq.  271 ;  Eldridge  v.  Smith, 
5  Shaw,  484.  The  power  of  sale  is  a  power  coupled  with  an  interest  and  is 
irrevocable.  Capron  v.  Attleborough  Bk.,  11  Gray,  492.  And  can  be  exe- 
cuted after  the  death  of  the  mortgagor.  Varnum  v.  Meserve,  8  Allen,  158; 
Harnehall  v.  Omdorflf,  35  Md.  340.  As  to  form  of  notice,  see  Roche  v. 
Farnsworth,  106  Mass.  509,  and  remarks  of  Endicott,  J.,  upon  this  case  in 
Dyer  v.  Shurtleff,  112  Mass.  165.  Equity  will  aid  the  defective  execution 
of  a  power  of  sale  in  a  mortgage  in  favor  of  a  bona  fide  purchaser  who  has 
paid  his  money  for  the  estate.  Beatty  v.  Clark,  20  Cal.  11 ;  Rowon  v.  Lamb, 
4  Green,  468.  The  whole  matter  of  power  of  sale  in  mortgages,  with  the 
authorities,  is  stated  in  1  Sugd.  V.  &  P.  65-68.  If  a  power  of  sale  in  a 
mortgage  provides  for  the  payment  of  the  expenses  of  the  sale,  counsel 
fees  may  be  paid.  Vamum  v.  Meserve,  8  Allen,  158.  But  the  mortgagee  can 
receive  nothing  for  his  own  time  and  trouble  in  executing  the  power.  Im- 
boden  v.  Atkinson,  23  Ark.  622.     [See  infra,  §  602  v.] 

^  Maryland  Ins.  Co.  v.  Dalrymple,  25  Md.  242;  Baltimore  Ins.  Co.  v. 
Dalrymple,  id.  269;  Byron  v.  Rayner,  id.  424. 

purchaser;  in  such  case,  he  may  if  The  power  of  sale  may  be  fully  exe- 

80  authorized,    make  the  deed   di-  cuted  by  one  to  whom  the  mortgage 

rectly   to   himself.     Hall    ;;.    Bliss,  has  been  assigned  as  collateral  secu- 

118  Mass.  554.    See  also  Marquam  rity.    Holmes  v.  Turner's  Falls  Co., 

V.  Ross,  47  Or.  374;  Mutual  Loan  &  150  Mass.  536. 
Banking  Co.  v.  Haas,  100  Ga.  111. 

328 


CHAP.  VI.]        CONTRACTS  OF  GUARDIAN  WITH  WARD.  [§  200. 

itant,  and  he  may  purchase  the  annuity  at  a  profit.'  So  a  cestui 
que  trust  may  devise  property  to  his  trustee,  and  there  is  no 
presumption  against  such  gifts.^  A  cestui  que  trust  may  pur- 
chase the  trust  property  or  other  property  of  the  trustee,  and 
the  purchase  will  be  good;  at  least  the  trustee  cannot  set  it 
aside.^  But  sales  to  a  cestui  que  trust  involving  an  investment 
of  the  trust  fund,  or  any  dealing  in  relation  to  it,  may  be  avoided 
by  the  cestui  que  trusts 

§  200.  Conveyances  from  wards  to  guardians  are  investi- 
gated with  more  severity  by  courts  than  contracts  between 
parent  and  child,  for  the  reason  that  there  is  not  that  family 
relationship  and  affection  which  sustain  and  uphold  family 
settlements.  The  relation  between  guardian  and  ward  is  one 
of  great  influence  over  the  ward,  and  is  generally  founded 
upon  the  pecuniary  relation  between  them.  While  the  relation 
actually  subsists,  no  contracts  can  be  made.^  But  if  a  contract 
or  conveyance  is  made  by  the  ward  to  the  guardian  just  after 
attaining  his  property,  and  before  a  full  settlement  is  made,  and 
while  the  influence  of  the  guardian  is  still  in  full  force,  courts 
will  examine  it  in  all  its  aspects;  and  the  guardian  claiming  under 
such  a  conveyance  must  satisfy  the  court  that  the  transaction 
was  fair  and  proper,  and  that  it  did  not  proceed  from  undue 
influence,  or  from  any  fear,  hope,  or  other  unworthy  motive 
induced  in  the  mind  of  the  ward  by  the  conduct  of  the  guardian.^ 

^  PoweU  V.  Murray,  2  Edw.  636. 

2  Stump  t'.  Gaby,  5  De  G.,  M.  &  G.  623;  Hindson  v.  Wetherill,  id.  301. 
But  see  Waters  v.  Thorn,  22  Beav.  547. 

»  Walker  v.  Brungard,  13  Sm.  &  M.  723;  Bank  v.  Macy,  4  Ind.  362. 
[Albany  Exchange  Bank  v.  Brass,  59  App.  Div.  (N.  Y.)  370.] 

*  McCants  v.  Bee,  1  McCord,  Ch.  382;  Chester  v.  Greer,  5  Humph.  26; 
Wade  V.  Harper,  3  Yerg.  383.  \Miere  a  sale  of  land  by  trustee  of  a  bank  b 
sought  to  be  avoided  by  the  cestui  que  trust,  the  improvements  cannot  be 
made  a  charge  against  the  seller.    Paine  v.  Invin,  16  Hun,  390. 

*  Dawson  v.  Massey,  1  B.  &  B.  226;  Blackmore  v.  Shelby,  8  Humph. 
439;  Bostwick  v.  Atkins,  3  Comst.  53;  Gallatiim  v.  Cunningham,  8  Cow. 
361 ;  Clarke  v.  Devereaux,  1  S.  C.  172. 

'  Richardson  v.  Linney,  7  B.  Mon.  471;  Andrews  v.  Jones,  10  Ala.  400; 

329 


§  200.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

If  there  is  the  slightest  suspicion  of  any  improper  motive  for  a 
gift,  as  that  a  better  or  more  speedy  settlement  may  be  obtained, 
the  conveyance  will  be  avoided,  and  the  guardian  will  continue 
to  hold  the  property  in  trust  for  the  ward.  Where  a  guardian 
improperly  procures  an  infant's  land  to  be  sold  by  decree  of  a 
court,  the  conveyance  will  be  avoided;  but  if  the  land  has  been 
conveyed  to  an  innocent  purchaser  without  notice,  the  title 
will  be  allowed  to  stand. ^  (a)  The  influence  of  the  guardian 
over  the  ward  may  be  so  subtle,  and  the  motives  of  the  gift 
may  be  of  such  a  nature,  as  to  baffle  a  court  of  equity  in  reach- 
ing them.  Therefore  it  has  been  said  that,  although  the  gift 
from  the  ward  may  be  a  highly  moral  act,  and  alike  creditable 
and  honorable  to  him,  yet,  if  the  court  is  not  entirely  satisfied 
by  clear  demonstration  that  the  gift  was  properly  made,  it 
will  be  set  aside.  Nothing  can  be  allowed  to  stand  that  pro- 
ceeds from  the  pressure  of  the  relation  of  guardian  and  ward 
fresh  upon  the  mind  of  the  ward.^  But  if  the  relation  has  entirely 
ceased,  and  a  full  settlement  has  been  made,  and  the  ward  has 
obtained  the  full  control  of  his  property,  and  if  sufficient  time 
has  elapsed  to  emancipate  the  mind  of  the  ward  from  all  undue 

Eberts  v.  Eberts,  54  Penn.  St.  110;  Dawson  v.  Massey,  1  B.  &  B.  229; 
Aylward  v.  Kearney,  2  id.  463;  Wright  v.  Proud,  13  Ves.  136;  Wedderburn 
V.  Wedderburn,  4  M.  &  C.  41 ;  Mulhallen  v.  Marum,  3  Dr.  &  W.  317;  Gary  v. 
Mansfield,  1  Ves.  379;  Garvin  v.  Williams,  44  Mo.  465;  Amer.  Law  Reg. 
vol.  11  (n.  s.),  6.56;  Ashton  v.  Thompson,  32  Minn.  25.  [Willis  v.  Rice, 
157  Ala.  252;  Drake  v.  Wild,  65  Vt.  611.] 

1  Gwinn  v.  Williams,  30  Md.  376. 

2  Hatch  V.  Hatch,  9  Ves,  297;  Hylton  v.  Hylton,  2  Ves.  548;  Pierce  v. 
Waring,  id.,  and  1  Ves.  380,  and  1  P.  Wms.  120,  n.;  1  Gox,  125;  Wood  v. 
Downes,  18  Ves.  126;  Johnson  v.  Johnson,  5  Ala.  90;  Williams  v.  Powell, 
1  Ired.  Eq.  460;  Gaplinger  v.  Stokes,  Meigs,  175;  Somes  v.  Skinner,  16  Mass. 
348;  Whitman's  App.  28  Penn.  St.  348;  Hawkin's  App.,  32  id.  263;  Scott 
V.  Freeland,  7  Sm.  &  M.  420;  Garvin  v.  Williams,  44  Mo.  465. 

(a)  A  guardian,  unlike  a  trustee,  bury  v.  Powers,  131  111.  182.     The 

has  no  title  to  his  ward's  property;  probate    court    may    authorize    a 

suits  must  be  brought  in  the  latter's  guardian's  conveyance  of  his  ward's 

name;  and  contracts  made  by  the  property.    State  t^.  Hamilton  County 

guardian  bind  only  himself.     Lom-  Com'rs,  39  Ohio  St.  58. 
bardv.  Morse,  155  Mass.  136;  Kings- 

330 


CHAP.  VI.]     CONTRACTS  OF  PARENTS  WITH  CIULDREN.  [§  201. 

impressions  and  influences,  it  may  not  only  be  proper,  but 
highly  meritorious  and  honorable,  for  a  ward  to  make  a  fitting 
gift  to  a  guardian  who  has  faithfully  performed  his  trust;  and 
a  court  fully  satisfied  upon  these  points  would  uphold  it.' 

§201.  In  the  same  manner  courts  of  equity  carefully  scru- 
tinize contracts  between  parents  and  children  by  which  the 
property  of  children  is  conveyed  to  parents.  The  position  and 
influence  of  a  parent  over  a  child  are  so  controlling,  that  the 
transaction  should  be  carefully  examined,  and  sales  by  a  child 
to  a  parent  must  appear  to  be  fair  and  reasonable.^  Such  con- 
tracts are  not,  however,  prima  facie  void,  but  there  must  be 
some  affirmative  proof  of  undue  influence  or  other  improper 
conduct  to  render  the  transaction  void;  for  while  the  parent 
holds  a  powerful  influence  over  the  child,  the  law  recognizes  it 
as  a  rightful  and  proper  influence,  and  does  not  presume,  in  the 
first  instance,  that  a  parent  would  make  use  of  his  authority 
and  parental  power  to  coerce,  deceive,  or  defraud  the  child  .^ 
Therefore  it  is  always  necessary  to  prove  some  improper  and 
undue  influence,  in  order  to  set  aside  contracts  between  parents 
and  children.^  (a)  As  purchases  by  a  parent  in  the  name  of  a 
child  do  not  create  a  resulting  trust,  but  are  presumed,  in  the 
first  instance,  to  be  the  advances  made  by  the  parent  to  the 
child,  so  conveyances  to  the  parent  by  the  child  may  be 
proper  family  arrangement,  and  for  the  best  interest  of  the 

'  Hylton  V.  Hylton,  2  Ves.  547;  Hatch  r.  Hatch,  9  Vos.  548. 

*  Blunder  v.  Barker,  1  P.  Wms.  639;  Wallace  v.  Wallace,  2  Dr.  &  W. 
452;  Cocking  v.  Pratt,  1  Ves.  401;  Heron  v.  Heron,  2  Atk.  181;  Carpenter 
f.  Heriot,  1  Eden,  328;  Young  v.  Peachey,  2  Atk.  254. 

«  Jenkins  v.  Pye,  12  Pet.  253,  254. 

*  Cocking  V.  Pratt,  1  Ves.  401;  Hawes  v.  Wyatt,  3  Bro.  Ch.  156;  2  Cox, 
263;  Heron  v.  Heron,  2  Atk.  161;  Young  v.  Peachcy,  id.  254;  Carpenter 
V.  Heriot,  1  Eden,  328.    [Hoblyn  v.  Hoblyn,  41  Ch.  Div.  200.] 

(a)  If    a    father    abandons    the  Hoblyn  v.  Hoblyn,  41  Ch.  D.  200. 

benefit  which  he  unfairly  obtains  by  See  Bainbrigge  v.  Browne,    IS  Ch. 

H  settlement  from  his  child,  the  rest  D.  188. 
of  the  settlement  may  stand  good. 

331 


§  202.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

child.'  If  no  such  considerations  can  be  found  in  the  case,  and 
the  conveyance,  after  all  allowances  are  made,  is  found  to  have 
been  wrongfully  obtained  from  the  child,  a  court  of  equity  will 
set  it  aside  or  convert  the  parent  into  a  trustee.-  But  the  pro- 
ceedings must  be  had  at  once.  The  child  cannot  wait  until  the 
parent's  death  or  until  the  rights  of  other  parties  have  inter- 
vened.^ The  same  rules  apply  when  contracts  are  made  be- 
tween children  and  those  who  have  put  themselves  in  loco 
parentis ;  "*  and  so  when  family  relatives  make  use  of  their 
position  and  influence  to  obtain  undue  and  improper  advan- 
tages, as  where  two  brothers  obtained  a  deed  from  a  sister,  it 
was  set  aside.^ 

§  202.  [The  relation  of  an  attorney  to  his  client  is  one  of 
especial  trust  and  confidence;  and  an  attorney  who  acquires 
property  in  violation  of  this  trust  and  confidence  may  be  ad- 
judged a  constructive  trustee  for  the  client.  The  principles  are 
practically  the  same  as  those  applicable  to  trustee  and  cestui. 

^  Blackborn  v.  Edgeley,  1  P.  Wms.  607;  Cooke  v.  Burtchaell,  2  Dr.  & 
W.  165;  Browne  v.  Carter,  5  Ves.  877;  Tendrill  v.  Smith,  2  Atk.  85;  Cory 
V.  Cory,  1  Ves.  19;  Kinchant  v.  Kinchant,  3  Bro.  Ch.  374;  Tweddell  v. 
Tweddell,  T.  &  R.  14;  Hartopp  v.  Hartopp,  21  Beav.  259;  Hannah  v.  Hodg- 
son, 30  Beav.  19. 

^  King  V.  Savery,  1  Sm.  &  Gif.  271;  5  H.  L.  Ca.  627;  Berdoe  v.  Dawson, 
11  Jur.  (n.  s.)  254;  Bury  v.  Oppenheim,  26  Beav.  594;  Baker  v.  Bradley, 
7  De  G.,  M.  &  G.  .597;  35  Eng.  L.  &  Eq.  449;  Field  v.  Evans,  15  Sim.  375; 
Slocumb  V.  Marshall,  2  Wash.  C.  C.  397;  Brice  v.  Brice,  5  Barb.  533;  Whelan 
V.  Whelan,  2  Cow.  537;  Young  w.  Peachey,  2  Atk.  254;  Glisson  v.  Ogden,  id. 
258;  Baker  v.  Tucker,  2  Eng.  L.  &  Eq.  1;  Blackborn  v.  Edgeley,  1  P.  Wms. 
607;  Morris  v.  Burroughs,  1  Atk.  402;  Tendrill  v.  Smith,  2  Atk.  85;  Hoghton 
V.  Hoghton,  15  Beav.  278;  Cooke  v.  Lamotte,  id.  234;  Wallace  v.  Wallace, 
2  Dr.  &  W.  452;  Hunter  v.  Atkins,  3  M.  &  K.  146;  Archer  v.  Hudson,  7 
Beav.  551 ;  Findley  v.  Patterson,  2  B.  Mon.  76. 

'  Wright  V.  Vanderplank,  2  K.  &  J.  1;  8  De  G.,  M.  &  G.  133;  Brown 
V.  Carter,  5  Ves.  877;  Taylor  v.  Taylor,  8  How.  201;  Crispell  v.  Dubois,  4 
Barb.  393. 

*  Archer  v.  Hudson,  7  Beav.  551;  Maitland  i;.  Backhouse,  16  Sim.  68; 
Maitland  v.  Irving,  15  id.  437. 

"  Sears  v.  Shafer,  2  Seld.  268;  Hewitt  v.  Crane,  2  Halst.  Ch.  159;  Boney 
V.  HoUingsworth,  23  Ala.  690. 

332 


CHAP.  VI.]  ATTORNEY    AND    CLIENT.  [§  202. 

When  an  attorney  deals  directly  with  his  client,  either  in  pur- 
chasing from  him  or  in  selling  to  him,  as  well  as  in  making  con- 
tracts with  him  during  the  time  of  his  employment  as  attorney, 
such  dealing  will  be  carefully  scrutinized  by  the  court  to  make 
sure  that  the  consent  of  the  client  was  freely  given  and  that  no 
material  matters  of  fact  or  of  law  were  concealed  from  him. 
The  courts  cast  upon  the  attorney  the  burden  of  proving  that 
no  undue  advantage  was  taken  of  the  client  by  reason  of  the 
relation  subsisting  between  them.  The  courts  look  with  sus- 
picion upon  such  a  transaction  and  will  allow  the  client  to 
avoid  it,  if  the  attorney  fails  to  show  that  it  was  fair,  and  with 
the  full  consent  of  the  client.^  The  rule  is  well  stated  as  follows, 
in  Roman  v.  Mali,  42  INId.  531,  559:  "The  attorney  is  under 
no  actual  incapacity  to  deal  with  or  purchase  from  his  client. 


'  Newman  v.  Payne,  2  Ves.  Jr.  199;  Welles  v.  Middleton,  1  Cox,  112; 

4  Bro.  P.  C.  245;  Harris  v.  Tremenheere,  15  Ves.  34;  Hunter  v.  Atkins, 
3  M.  &  K.  135;  Cane  v.  Allen,  2  Dow,  289;  Champion  v.  Rigby,  1  R.  &  M. 
539;  Bellow  v.  Russell,  1  B.  &  B.  107;  Gibson  i'.  Jeyes,  6  Ves.  277;  Uppington 
V.  Buller,  2  Dr.  &  W.  184;  Walmsley  v.  Booth,  2  Atk.  30;  Montesquieu  v. 
Sandys,  18  Ves.  302;  Edwards  v.  Meyrick,  2  Hare,  60;  Wood  v.  Downes, 
18  Ves.  120;  Lewis  v.  Hillman,  3  H.  L.  Cas.  607;  Salmon  v.  Cutts,  4  De 
G.  &  Sm.  131;  Holman  v.  Loynes,  4  De  G.,  M.  &  G.  270;  King  v.  Savery, 

5  H.  L.  Cas.  627;  Robinson  v.  Briggs,  1  Sm.  &  Gif.  184;  Greenfield's  Est.,  2 
Harris,  489;  Merritt  v.  Lambert,  10  Paige,  357;  Wallis  v.  Loubat,  2  Denio, 
607;  Howell  v.  Ransom,  11  Paige,  538;  Evans  v.  Ellis,  5  Denio,  640;  Barry 
V.  Whitney,  3  Sand.  S.  C.  696;  Hawley  v.  Cramer,  4  Cow.  717;  Mott  v.  Har- 
rington, 12  Vt.  199;  Miles  v.  Ervin,  1  McCord,  Ch.  524;  Waters  v.  Thorn, 
22  Beav.  547;  Bank  v.  Tyrrell,  27  Beav.  273;  10  H.  L.  Cas.  26;  Wall  v.  Cock- 
erell,  id.  229;  Brown  v.  Kennedy,  33  Beav.  133;  Smedley  v.  Varley,  23  Beav. 
359;  O'Brien  v.  Lewis,  4  Gif.  221;  Corley  v.  Stafford,  1  De  G.  &  J.  238; 
Spring  V.  Pride,  10  Jur.  (n.  s.)  646;  Gresley  v.  Mousley,  4  De  G.  &  J.  78; 
Barnard  v.  Hunter,  2  Jur.  (n.  s.)  1213;  Douglass  v.  Culverwell,  31  L.  J. 
Ch.  6.5,  .543;  Brock  v.  Barnes,  40  Barb.  521.  [Gibson  v.  Gossom,  47  S.  W. 
237 (Ark.  1898);  Kofoed  v.  Gordon,  122  Cal.  314;  Coffey  v.  Quint,  92  Cal. 
475;  Valentine  v.  Stewart,  15  Cal.  387,  401;  Donahoe  v.  Chicago  Cricket 
Club,  177  111.  351;  Elmore  v.  Johnson,  143  111.  513;  Roby  v.  Colehour,  135 
111.  300;  Dunn  v.  Record,  63  Me.  17;  Merryman  v.  Euler,  59  Md.  588;  Mar- 
shall V.  Joy,  17  Vt.  546;  U.  S.  v.  Coffin,  83  Fed.  337;  Pisani  v.  Att.  Gen., 
L.  R.  5  P.  C.  517,  536;  Savery  v.  King,  5  H.  L.  Cas.  627,  655;  Luddy'a 
Trustee  v.  Peard.  33  Ch.  Div.  500;  Rcaddy  v.  Pendergast,  55  L.  T.  767; 
Weeks  on  Attomeya  at  Law  (2d  ed.),  §  273  et  seq.] 

333 


§  202.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

All  that  can  be  required  is,  that  there  has  been  no  abuse  of  the 
confidence  reposed,  no  imposition  or  undue  influence  practised, 
nor  any  unconscionable  advantage  between  parties  occupying 
such  relation  to  each  other;  the  onus  of  the  case  is  cast  upon  the 
attorney  of  showing  that  nothing  has  happened  in  the  course 
of  the  dealing  which  might  not  have  happened  had  no  such 
connection  subsisted,  and  that  the  transaction  has  been  fair  in 
all  respects.  If  the  Court  be  satisfied  that  the  party  holding 
the  relation  of  client  performed  the  act  or  entered  into  the 
transaction  voluntarily,  deliberately  and  advisedly,  knowing  its 
nature  and  effect,  and  that  no  concealment  or  undue  means  were 
used  to  obtain  his  consent  to  what  was  done,  the  transaction 
will  be  maintained."  ]  If  the  attorney  cannot  produce  evidence 
that  puts  the  transaction  clearly  beyond  all  doubt  or  question, 
it  will  be  set  aside  or  he  will  be  converted  into  a  trustee.^  This 
disability  of  an  attorney  continues  as  long  as  the  relation  of  at- 
torney and  client  continues,  and  as  much  longer  as  the  influence 
of  the  relation  can  be  supposed  to  extend.  If  the  relation  has 
ceased,  but  the  influence  of  the  relation  continues  to  affect  the 
minds  of  the  parties,  all  contracts  made  under  the  influence  will 
be  avoided.^  But  if  the  relation  has  entirely  ceased,  and  there 
can  be  supposed  to  be  no  influence  remaining,  the  rule  will  not 
apply .^  And  so,  if  an  attorney  makes  a  purchase  of  a  client  of 
property  entirely  disconnected  with  the  subject  of  the  litiga- 
tion, and  the  transaction  is  in  all  respects  as  if  it  had  taken  place 
between  strangers,  the  rule  will  not  apply.*  So  the  rule  does 
not  apply  to  a  gift  to  an  attorney  in  the  will  of  a  client,  if  the 
will  is  a  good  and  valid  instrument  in  the  courts  where  it  is 
presented  for  probate;  ^  and  a  voidable  conveyance  to  an  attor- 

1  Ibid.;  Smith  v.  Brotherline,  62  Perm.  St.  461. 

*  Henry  v.  Raiman,  25  Penn.  St.  354;  Leisenring  v.  Black,  5  Watte,  303; 
Hockenbury  v.  Carlisle,  5  Watte  &  S.  350. 

«  Wood  V.  Downee,  18  Ves.  127. 

*  Edwarde  v.  Meyrick,  2  Hare,  60;  Bellowe  v.  Rueeell,  1  B.  &  B.  104; 
Monteequieu  v.  Sandys,  18  Ves.  302. 

*  Hindson  v.  Wetherell,  5  De  G.,  M.  &  G.  30;  overruling  same  case,  1 
Sm.  &  G.  604.    But  see  23  L.  Rev.  442,  and  notes  to  1  Sm.  &  G.  604. 

334 


CHAP.  VI.]  ATTORNEY    AND    CLIENT.  [§  202  6. 

ney  may  be  confirmed  in  the  will  of  the  client.*  But  the  rule 
will  not  apply  to  an  attorney  incidentally  consulted  concern- 
ing some  point  of  the  litigation,  but  who  is  not  employed 
or  confided  in,  for  the  management  of  the  case,^  nor  will  it 
apply  to  the  attorney  upon  the  other  side.'  Nor  will  it  apply 
after  the  relation  has  ceased  and  the  attorney  has  assumed  a 
hostile  position  in  endeavoring  to  collect  his  fees.^  If  an  attor- 
ney takes  an  absolute  deed  from  a  client  in  payment  of  his 
fees,  the  court  may  order  it  to  stand  as  a  mortgage  security,^ 
and  where  there  was  a  fair  agreement  that  an  attorney's  fees 
should  be  charged  upon  the  estate,  if  recovered,  the  court  al- 
lowed it  to  stand  in  the  absence  of  undue  influence,®  and  so  the 
court  will  not  interfere  after  a  great  lapse  of  time  where  the 
sale  was  for  full  value.  ^ 

[§  202  a.  There  is  no  absolute  incapacity  in  an  attorney  to 
receive  a  gift  from  his  client,  but  the  presumption  of  fraud  or 
undue  influence  is  very  strong.  "The  clearest  evidence  is  re- 
quired, that  there  was  no  fraud,  influence  or  mistake;  that  the 
transaction  was  perfectly  understood  by  the  weaker  party;  and 
usually  evidence  is  required,  that  a  third  and  disinterested 
person  advised  such  party  of  all  his  rights."  ^  ] 

[§  202  b.  The  courts  will  protect  a  client  from  purchases  by 
his  attorney,  without  the  cHent's  consent,  of  any  outstanding 

»  Stump  V.  Gaby,  2  De  G.,  M.  &  G.  623.  But  see  Waters  v.  Thorn,  22 
Beav.  447. 

*  Dobbins  v.  Stevens,  17  S.  &  R.  13.    Devinney  v.  Norris,  8  Watts,  314. 
»  Bank  v.  Foster,  8  Watts,  305. 

*  Johnson  v.  Fesemeyer,  3  De  G.  &  J.  13;  Smith  v.  Brotherline,  62  Penn. 
St.  461. 

'  Pearson  v.  Benson,  28  Beav.  598;  Morgan  v.  Higgins,  5  Jur.  (n.  s.) 
236. 

»  Moss  V.  Bainbridge,  6  De  G.,  M.  &  G.  292;  Blagrave  f.  Routh,  2  K. 
&  J.  509. 

^  Clanricarde  v.  Henning,  30  Beav.  175. 

*  [Nesbit  V.  Lockman,  34  N.  Y.  167.  See  also  Whipple  v.  Barton, 
63  N.  H.  613;  Harris  v.  Tremenheere,  15  Ves.  34;  Liles  v.  Terry,  (1895) 
2  Q.  B.  679;  Tyars  v.  Alsop,  61  L.  T.  8.] 

335 


§  202  b.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VL 

title  to  or  adverse  interest  in  the  property  which  is  the  subject 
matter  of  Utigation  or  other  controversy  in  which  the  attorney 
has  been  employed.  Thus  an  attorney  employed  to  settle 
outstanding  claims  against  his  client  will  not  be  permitted 
to  buy  them  in  on  his  own  account  and  then  collect  the  full 
amount  from  the  client.^  An  attorney  who  has  been  con- 
sulted about  a  title  to  land  owned  by  his  client,  or  which  the 
latter  contemplates  buying,  will  not  be  permitted  to  purchase 
an  outstanding  adverse  title  and  then  set  it  up  in  opposition 
to  his  client.^  The  same  is  true  of  an  attorney's  purchase  of 
a  tax  title  to  his  client's  land,  which  is  the  subject  of  litigation 
in  which  he  is  employed.^  Similarly,  an  attorney  who  has  been 
consulted  by  a  mortgagor  in  regard  to  mortgaged  property, 
cannot  buy  it  in  for  himself  at  foreclosure  sale,  when  the  mort- 
gagor is  seeking  to  buy  it.^  When  the  client  is  a  judgment 
creditor  his  attorney  will  not  be  permitted  to  buy  and  hold  for 
his  own  benefit  at  the  execution  sale  in  favor  of  his  client,  if 
the  latter  was  attempting  to  purchase  on  his  own  account,^ 
even  though  the  attorney  was  not  employed  to  purchase  for 
him.^  Such  dealings  by  an  attorney  in  competition  with  his 
client  or  in  opposition  to  him  in  a  matter  relating  to  the  em- 
ployment are  so  inconsistent  with  the  position  of  trust  and  con- 
fidence which  the  attorney  occupies  that  the  client  will  be 
given  relief  without  being  obliged  to  show  that  there  was  in 
fact  any  fraud  or  unfairness.  "The  rule  stands  on  the  moral 
obligation  to  refrain  from  placing  one's  self  in  positions  which 
ordinarily  excite  conflicts  between  self-interest  and  integrity."]  "^ 

1  Sutliff  V.  Clunie,  37  P.  224  (Cal.  1894);  De  Chambrun  v.  Cox,  60 
Fed.  471. 

2  Eoff  V.  Irvine,  108  Mo.  378. 

»  Wright  V.  Walker,  30  Ark.  44;  Cunningham  v.  Jones,  37  Kan.  477; 
Olson  V.  Lamb,  56  Neb.  104;  Jackson  v.  Strader,  61  W.  Va.  161. 

*  Case  V.  Carroll,  35  N.  Y.  385.     See  also  Larey  v.  Baker,  86  Ga.  468. 

*  Pearce  v.  Gamble,  72  Ala.  341;  Taylor  v.  Young,  56  Mich.  285;  New- 
comb  V.  Brooks,  16  W.  Va.  32,  72. 

«  Ward  V.  Brown,  87  Mo.  468. 

7  Gilbert  v.  Hewetson,  79  Minn.  326;  Newcomb  v.  Brooks,  16  W.  Va. 
32,  72;  Jackson  v.  Strader,  61  W.  Va.  161.    For  limitations  upon  the  rule 

336 


CHAP.  VI. J  ATTORNEY    AND    CLIENT.  [§  204. 

§  203.  All  the  dealings  between  attorney  and  client  will  be 
carefull}'  examined  by  courts  [and  tested  by  the  same  principle, 
if  the  client  seeks  relief].'  Thus  a  bond  obtained  from  a  poor 
and  distressed  client,  the  consideration  not  appearing  with 
sufficient  clearness,  was  set  aside,'  and  so  a  bond  was  not 
allowed  to  stand  except  for  the  amount  of  fees  actually  due,^ 
and  a  judgment  was  inquired  into  after  a  considerable  lapse 
of  time.'*  And  even  where  a  barrister  married  a  lady  client, 
and  undertook  to  draw  the  marriage  settlement,  according  to 
the  stipulations  between  them,  it  was  held  to  be  open  to  in- 
vestigation by  the  court.''  The  same  rules  are  applied  to  all 
persons  standing  in  the  relation  of  attorneys  or  confidential 
advisers,  although  they  are  not  attorneys  in  fact;  thus  clerks 
in  an  attorney's  office,  who  do  business  for  the  client  and  obtain 
a  knowledge  of  his  affairs  and  his  confidence,  cannot  avail 
themselves  of  their  position  to  make  favorable  bargains  or 
purchases,^  and  so  one  who  acts  as  a  confidential  adviser  in  a 
matter  before  a  magistrate,  where  attorneys  are  not  employed, 
is  under  the  same  obligations  and  disabilities.^  Of  course,  if 
there  is  actual  fraud  committed  by  an  attorney  in  a  purchase 
from  a  client,  the  transaction  will  be  summarily  dealt  with.* 

§  204.  The  same  principles  apply  to  transactions  between 
all  persons  standing  in  confidential  and  influential  relations  to 
each  other.     The  person  thus  possessing  the   confidence  of 

see,  Page  v.  Stubbs,  39  Iowa,  537;  Herr  v.  Payeon,  157  111.  244; 
Rogers  v.  Gaston,  43  Minn.  189;  Pacific  R.  R.  Co.  v.  Ketchum,  101  U.  S. 
289. 

1  [See  Clark  v.  Girdwood,  7  Ch.  Div.  9;  James  v.  Kerr,  40  Ch.  Div.  449.] 

2  Proof  V.  Hines,  Cas.  t.  Talb.  Ill;  Walmeslcy  v.  Booth,  2  Atk.  28. 

»  Newman  v.  Payne,  4  Bro.  Ch.  350;  2  Ves.  Jr.  200;  Langstaffc  v.  Taylor, 
14  Ves.  262;  Pitcher  v.  Rigby,  9  Price,  79;  Jones  v.  Roberts,  9  Beav.  419. 

*  Draper's  Company  v.  Davis,  2  Atk.  295. 
'  Corley  v.  Stafford,  1  De  G.  &  J.  258. 

•  Hobday  v.  Peters,  28  Beav.  349;  6  Jur.  (n.  s.)  794;  Cowdry  v.  Day, 
5  Jur.  (n.  s.)  1199;  Gardner  v.  Ogden,  22  N.  Y.  327;  Poillon  t;.  Martin,  1 
Sandf.  Ch.  569. 

^  Buffalow  V.  Buffalow,  5  Dev.  &  Bat.  Eq.  241. 
»  Webster  v.  King,  33  Cal.  348. 

VOL.  I.— 22  337 


§  205.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

another,  and  having  an  influence  by  reason  of  such  confidence, 
cannot  use  his  influence  to  obtain  contracts,  conveyances,  or 
property,  and  the  burden  of  proof  is  always  on  the  party  stand- 
ing in  the  position  of  influence,  to  show  the  transaction  just  and 
fair.^  Quasi  guardians,  husband  and  wife,  confidential  advisers, 
stewards,  keepers  of  asylums  in  which  the  quasi  ward  may  have 
been  treated,  and  confidential  medical  advisers,  all  come  within 
the  rule.^  But  the  mere  fact  that  the  donee  is  an  attending 
physician,  there  being  no  confidential  relation,  will  not  avoid  a 
deed.^  But  the  administrator  of  a  deceased  partner  may  buy 
the  partnership  property,  although  he  may  be  a  surviving 
partner.^  (a) 

§  205.  [The  same  principles  apply  to  attempted  purchases  by 
administrators  and  executors  of  the  estate  under  their  charge 

1  Holt  V.  Agnew,  67  Ala.  368. 

2  Trevelyan  v.  Charter,  9  Beav.  140;  11  C1.&  Fin.  714;  Revett  v.  Harvey, 
1  S.  &  S.  502;  Huguenin  v.  Baseley,  14  Ves.  273;  Gray  v.  Mansfield,  1  Ves. 
379;  Wright  v.  Proud,  13  Ves.  136;  Ahearne  v.  Hogan,  1  Dr.  310;  Billing  v. 
Southee,  9  Hare,  534;  16  Jur.  188;  Crispell  v.  Dubois,  4  Barb.  393;  Blackie 
V.  Clarke,  22  L.  J.  Ch.  377;  Whitehorn  v.  Hines,  1  Munf.  559;  Shallcross  v. 
Oldham,  2  John.  &  H.  609;  Dent  v.  Bennett,  4  M.  &  Cr.  269;  Gibson  v. 
Russell,  2  Y.  &  C.  N.  R.  104;  Pratt  v.  Barker,  1  Sim.  1;  Swissholm's  App., 
56  Penn.  St.  475;  Falk  v.  Tumer,101  Mass.  494;  Rhodes  v.  Bate,  L.  R.  I. 
Ch.  252.  [Markley  v.  Camden  Safe  Dep.  &  Tr.  Co.,  69  A.  1100  (N.  J.  Ch. 
1908).] 

3  Doggett  V.  Lane,  12  Mo.  215. 

*  Savage  v.  Williams,  15  La.  An.  250;  Carter  v.  McManue,  id.  641 ;  Dugas 
V.  GUbeau,  id.  581. 

(a)  The  cases  cited  as  authority  trust  property  to  himself  without 

for    this    proposition    are    under    a  the  intervention  of  somebody  whose 

statute  of  Louisiana  which  author-  only    interest   is    to    protect    those 

izes  a  surviving  partner  to  purchase  beneficially    interested.      Although 

the  assets  of  the  firm.    The  general  the  administrator  or  executor  of  a 

rule  seems  to  be  that  the  appoint-  deceased  partner  may  assent  to  a 

ment    of    a    surviving    partner    as  purchase  by  the  surviving  partner, 

executor    or    administrator    of    the  it   seems   that  such   assent  should 

estate    of    his    deceased    copartner  not  be  effective  when  he  is  also  a 

does  not  increase  the  powers  which  surviving  partner.    See  Parsons  on 

he  has  in  either  capacity,  and  does  Partnership  (4th  ed.),  §352;  Lindley 

not  enable  him  to  avoid  the  general  on  Partnership  (7th  ed,),  530,  653. 
rule   that   a   fiduciary    cannot   sell 

338 


CHAP.  VI.]  ADMINISTRATORS    AND    EXECUTORS.  [§  205. 

to  administer.'  When  the  purchase  is  directly  from  benefi- 
ciaries of  their  interests,  or  when  the  purchase  is  assented  to  by 
all  the  beneficiaries,  the  executor  or  administrator  has  the 
burden  of  showing  that  the  beneficiaries  selling  or  those  assent- 
ing to  his  purchase  knew  that  he  was  the  purchaser  and  were 
fully  informed  by  him  of  everything  which  might  influence 
them  in  selling  their  interests  or  assenting  to  his  purchase  of 
the  property,  and  that  no  undue  influence  was  used  by  him  and 
no  unfairness  practised.-  When  he  attempts  to  purchase  the 
property  without  the  assent  of  all  the  persons  beneficially  in- 
terested, the  purchase  is  voidable  at  the  option  of  any  bene- 
ficiary, and  the  question  of  fairness  does  not  enter.^  When  he 
purchases  an  outstanding  interest  adverse  to  the  title  of  the 
decedent,  those  interested  may  elect  to  have  him  adjudged  a 
trustee  of  such  interest  for  their  benefit.^  But  one  or  more  of 
those  beneficially  interested  cannot  avoid  a  purchase  by  him 
of  the  beneficial  interest  of  another.^  The  rule  cannot  be 
evaded  by  procuring  a  third  person  to  purchase  in  the  first  in- 

1  Davoue  i'.  Fanning,  2  Johns.  Ch.  252;  Van  Epps  v.  Van  Epps,  9  Paige, 
237;  Ward  v.  Smith,  3  Sandf.  Ch.  592;  Ames  t>.  Brovming,  I  Bradf.  321; 
Rogers  v.  Rogers,  3  Wend.  503;  Bostwickv.  Atkins,  1  Comst.  53;  Michoud 
V.  Girod,  4  How.  504;  Drysdale's  App.,  14  Penn.  St.  531 ;  Moody  v.  Vandyke, 
4  Binn.  31 ;  Beeson  v.  Beeson,  9  Barr,  279;  Winter  v.  Geroe,  1  Halst.  Ch.  319; 
Conway  v.  Green,  1  H.  &  J.  151;  Bailey  v.  Robinson,  1  Grat.  4;  Hudson  v. 
Hudson,  5  Munf.  180;  Baines  t;.  McGee,  1  Sm.  &  M.  208;  Baxter  v.  Coetin, 
1  Busb.  Eq.  262;  Breckenridge  v.  Holland,  2  Blackf.  377;  Edmunds  v. 
Crenshaw,  1  McCord,  Ch.  252.  But  in  South  Carolina  an  executor  may 
purchase  the  personal  property.  Stallings  r.  Foreman,  2  HillEq.  401;  and 
so  in  Alabama,  Julian  v.  Reynolds,  8  Ala.  680;  Peyton  v.  Enos,  16  La.  An.  135 ; 
Van  Weckle  v.  Malla,  id.  325;  Huston  v.  Caesidy,  2  Beae.  228;  Mulfordr. 
Winch,  3  Stockt.  16;  Culver  v.  Culver,  id.  215;  Dugas  t;.  Gilbeau,  15  La 
An.  581. 

*  Woemer,  Am.  Law  of  Administration  (2d  ed.),  §§  334,  487;  HandUn 
V.  Davis,  81  Ky.  34. 

'  Faucett  i-.  Faucett,  1  Bush.  511;  Bechtold  v.  Read,  49  N.  J.  Eq.  Ill ; 
In  re  Taylor  Orphan  Asylum,  36  Wis.  534;  Woemer,  Am.  Law  of  Adminis- 
tration (2d  ed.),  §§  334,  487. 

*  Merrick  v.  Waters,  51  App.  Div.  83,  64  N.  Y.  S.  842  (affirmed  171  N.  Y. 
655). 

»  Hale  V.  Aaron,  77  N.  C.  371. 

339 


§  205.]  CONSTRUCTIVE  TRUSTS.  [CHAP.  VI, 

stance,  and  by  receiving  a  conveyance  from  such  third  person.^! 
This  rule  is  so  strict,  that  they  cannot  purchase  any  of  the 
assets  of  the  estate  under  their  charge,  although  the  assets  are 
ordered  by  the  court  to  be  sold  at  public  auction;  ^  and  even 
where  a  creditor  seized  a  portion  of  the  estate  and  exposed  it 
to  public  sale,  it  was  held  that  the  executor  or  administrator 
could  not  purchase.^  So  if  an  executor  join  with  others  in  the 
purchase  of  the  estate  the  sale  may  be  avoided/  If,  however, 
the  estate  is  sold  in  good  faith  to  a  stranger,  with  no  collusion 
between  him  and  the  executor,  there  is  nothing  to  prevent  the 
executor  from  purchasing  it  afterwards  like  any  other  property.^ 
So  an  executor  may  purchase  the  interest  of  a  third  person  in  the 
estate.®  If  fraud  is  superadded  to  a  purchase  by  an  executor, 
or  any  use  of  his  situation  is  made  to  make  a  more  favorable 
purchase,  it  will  of  course  be  avoided,  or  he  will  be  ordered  to 
account  for  the  property  and  all  the  profits  received.^  But 
generally  a  purchase  of  the  assets  of  an  estate  by  an  executor  is 
not  void,  but  only  voidable,  and  such  sale  may  be  confirmed  by 
all  the  parties  interestedin  the  estate;  ^  and  so  a  long  acquies- 

1  Davoue  v.  Fanning,  2  Johns.  Ch.  252;  Paul  v.  Squibb,  12  Penn.  St. 
296;  Woodruff  v.  Cook,  2  Edw.  Ch.  259;  Hawley  v.  Cramer,  4  Cow.  717; 
Beaubien  v.  Poupard,  Harr.  Ch.  206;  Buckles  v.  Lafferty,  2  Rob.  292;  Hunt 
f;.  Bass,  2  Dev,  Eq.  292;  Forbes  v.  Halsey,  26  N.  Y.  53;  Miles  v.  Wheeler, 
43  lU.  123;  Kruse  v.  Stephens,  47  111.  112;  Smith  v.  Drake,  23  N.  J.  Eq. 
302;  Tiffany  v.  Clark,  1  N.  Y.  Sup.  Ct.  Add.  9. 

-  Walhngton's  Est.,  1  Ashm.  307;  Beeson  v.  Beeson,  9  Barr,  279;  Rham 
V.  North,  2  Yeates,  117;  Jewett  v.  Miller,  10  N.  Y.  402;  Fox  v.  Mackreth, 
1  Lead.  Cas.  Eq.  1 ;  Colgate  v.  Colgate,  23  N.  J.  Eq.  372;  Colbum  v.  Morton, 
1  N.  Y.  Dec.  378;  Farrar  v.  Farley,  3  S.  C.  11.  [Faucett  v.  Faucett,  1  Bush. 
511;  7n  re  Taylor  Orphan  Asylum,  36  Wis.  534.] 

8  Spindler  v.  Atkinson,  3  Md.  410;  Fleming  v.  Teran,  12  Ga.  394;  Wyn- 
coop  V.  Wyncoop,  12  Ind.  206.  But  the  contrary  rule  was  held  in  Fisk  v. 
Sarber,  6  Watts  &  S.  18;  Prevost  v.  Gratz,  1  Pet.  C.  C.  364;  Campbell  v, 
Johnson,  1  Sandf.  Ch.  148;  Bank  of  Orleans  v.  Torrey,  7  Hill,  260. 

*  Mitchum  v.  Mitchum,  3  Dana,  260;  Paul  v.  Squibb,  12  Penn.  St.  296. 

"  Silverthom  v.  McKinister,  12  Penn.  St.  67.  [Johnson  v.  Kay,  8  Humph. 
142.] 

'  Alexander  v.  Kennedy,  3  Grat.  379. 

'  Vanhom  v.  Fonda,  5  Johns.  Ch.  388;  Hudson  v.  Hudson,  5  Munf.  180. 

'  Harrington  v.  Brown,  5  Pick.  519;  Bruch  v.  Lantz,  2  Rawle,  392; 

340 


CIL\P.  VI.]  PRINCIPAL   AND   AGENT.  [§  200. 

cence  in  a  purchase  made  by  an  executor,  by  all  the  heirs, 
would  be  held  to  be  a  confirmation.^  If  an  administrator  pur- 
chases the  estate  at  his  own  sale,  and  aften\ards  conveys  the 
estate  to  a  third  person,  his  vendee  will  be  charged  with  notice 
of  the  defect  of  title,  as  it  would  be  apparent  upon  the  face  of 
the  deed.^  But  if  the  administrator  should  collusively  convey 
to  a  third  person  and  take  back  a  deed  from  him,  and  then  him- 
self sell,  the  purchaser  would  not  probably  be  charged  with 
notice  unless  he  had  actual  notice.^ 

§  200.  The  relation  of  principal  and  agent  is  a  fiduciary  one, 
and  the  same  observations  apply  as  to  other  relations  of  trust 
and  confidence,  (a)  Some  have  doubted  whether  it  would  not 
have  been  wiser  to  have  prohibited  all  contracts  between  parties 
sustaining  these  relations  to  each  other,  and  to  have  thus  taken 
away  all  temptation  to  abuse  the  trust,  rather  than  to  investi- 
gate each  case  as  it  arises.'*    But  perhaps  the  entire  freedom  of 

Pennock's  App.,  14  Penn.  St.  446;  Longworth  v.  Goforth,  Wright,  192; 
Dunlap  V.  Mitchell,  10  Ohio,  117;  Williams  v.  Marshall,  4  G.  &  J.  377; 
Moore  v.  Hilton,  12  Leigh,  2;  Scott  i'.  Freeland,  7  Sm.  &  M.  410;  Lyon  v. 
Lyon,  8  Ired.  Eq.  201. 

*  Jennison  v.  Hapgood,  7  Pick.  1;  Hawley  v.  Cramer,  4  Cow.  719;  Ward 
V.  Smith,  3  Sandf.  Ch.  592;  Baker  v.  Read,  18  Beav.  398;  Musselman  i-. 
Eshelman,  10  Barr,  394;  Bell  v.  Webb,  2  Gill,  164;  Todd  v.  Moore,  1  Leigh, 
457. 

*  Lazarus  v.  Bryson,  3  Binn.  59;  Ward  v.  Smith,  3  Sandf.  592;  Smith 
V.  Drake,  23  N.  J.  Eq.  302;  Potter  v.  Pearson,  60  Maine,  220. 

'  Johnson  v.  Bennett,  39  Barb.  237. 

*  Dunbar  v.  Tredennick,  2  B.  &  B.  319;  Norris  v.  La  Neve,  3  Atk.  38; 
Fairman  v.  Bavin,  29  111.  75. 

(a)  The  agent  is  under  the  same  11  S.  D.  408,  78  N.  W.  357.    He  be- 

duty  as  a  trustee  not  to  attempt  per-  comes  a  constructive  trustee  when,  in 

sonal  gain  directly  or  indirectly  by  violation  of  his  duty  to  his  principal, 

purchasing  or  dealing  with  his  prin-  or  by  misusing  the  latter's  funds,  he 

cipal's  property.     Lister  v.  Stubbs,  purchases   real   estate   for   himself. 

45  Ch.  D.  1;  Stevenson  v.  Kyle,  42  Ibid.;  Gashe  t-.  Young,  51  Ohio  St. 

W.  Va.  229;  Tyler  v.  Sanborn,  128  376;    Boswell    i-.    Cunningham,   32 

111.  136;  Darlington's  Estate,  147  Fla.  277;  Lee  v.  Patten,  34  Fla.  149. 
Penn.  St.  624;  Luscombe  v.  Grigsby, 

341 


§  206.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

trade  and  business,  and  the  convenience  of  society,  demand  that 
there  should  be  at  least  the  possibility  of  dealing  between  per- 
sons bearing  these  relations,  and  thus  there  is  no  absolute  pro- 
hibition. The  principal  may  buy  and  sell  of  the  agent,  and  he 
may  make  an  agent  the  object  of  his  bounty,  but  there  must  be 
the  utmost  good  faith  and  frankness  in  the  dealing.^  The  prin- 
cipal is  entitled  to  the  best  skill  and  judgment  of  his  agent  in 
the  conduct  of  his  affairs.  If  at  the  same  time  the  agent  is  at 
liberty  to  purchase  the  property  of  his  principal,  there  would 
be  such  a  conflict  between  his  duty  and  his  interest,  that  there 
could  be  no  safety  in  business.  An  agent,  therefore,  if  he  pur- 
chases property  of  his  principal,  must  communicate  fully  and 
truly  every  fact  in  relation  to  such  property  within  his  knowl- 
edge; (a)  and  he  must  also  be  known  as  the  purchaser,  for  if 
he  acts  secretly  the  contract  will  certainly  be  held  to  be  fraudu- 
lent; (6)  and  so  if  he  is  employed  to  purchase  for  another  and  he 
purchases  for  himself,  he  will  be  held  to  be  a  trustee.^    No  per- 

'  Selsey  v.  Rhoades,  2  S.  &  S.  49;  1  Bligh,  1;  Kerr  v.  Dungannon,  1  Dr. 
&  W.  509,  541 ;  Huguenin  v.  Baseley,  14  Ves.  273;  Molony  v.  Keman,  2  Dr.  & 
W.  31;  Harris  v.  Tremenheere,  15  Ves.  40;  Winchelsea  v.  Garrety,  1  M.  & 
K.  253;  Benson  v.  Heatham,  1  Y.  &  C.  Ch.  326;  Neeley  v.  Anderson,  2  Strob. 
Eq.  262;  Brooke  v.  Berry,  2  Gill,  83;  Persch  v.  Quiggle,  57  Penn.  St.  247. 

2  Lees  V.  Nuttall,  1  R.  &  M.  53;  Taml.  282;  Church  v.  Marine  Ins.  Co., 
1  Mason,  341 ;  Crowe  v.  Ballard,  3  Bro.  Ch.  120;  Barker  v.  Ins.  Co.,  2  Mason, 
369;  Massey  v.  Davies,  2  Ves.  Jr.  318;  Woodhouse  v.  Meredith,  1  J.  &  W. 
204;  Purcell  v.  Macnamara,  14  Ves.  91;  Wott  v.  Grove,  2  Sch.  &  Lef.  492; 

(a)  The  agent  must  communicdte  t;.  Colehour,  135  111.  300;  Darling- 

to  his  principal  in  such  cases  all  his  ton's  Estate,  147  Pa.  St.  624. 
knowledge,  with  respect  to  the  prop-  (b)  Thus   where   an   agent,   em- 

erty,  which  he  has  acquired  as  agent  ployed  to  sell,  secured  a  purchaser 

or  which  his  duty  as  agent  would  at  a  price  satisfactory  to  the  vendor 

require  him  to  communicate  to  his  but  the  purchaser  refused  to  abide 

principal  if  the  sale  waa  to  a  third  by  his  bargain  and  the  agent's  wife 

person,   and   he  has  the  btirden  of  purchased  at  the  agreed  price  with- 

proving  affirmatively   that  he  has  out  the  knowledge  of  the  vendor,  a 

made  full  disclosure  of  everything  constructive  trust  was  decreed  for 

within  his  knowledge  that  the  prin-  the  vendor.    Tyler  v.  Sanborn,  128 

cipal    should    know.      Fraudulent  111.  136. 
intent  need  not  be  shown.     Roby 

342 


CUAI'.   VI.]  PRINCIPAL    AND    AGENT.  [§  206. 

son  whose  duty  to  another  is  inconsistent  with  his  taking  an 
absolute  title  to  himself  will  be  permitted  to  purchase  for 
himself.  For  no  one  can  hold  a  benefit  acquired  by  fraud  or  a 
breach  of  his  duty.^  (a)    All  the  knowledge  of  the  agent  belongs 

Lowther  v.  Lowther,  13  Ves.  102;  Green  t;.  Winter,  1  Johns.  Ch.  27;  Morret 
t;.  Paske,  2  Atk.  53;  Coles  v.  Trecothick,  9  Ves.  246;  Parkist  v.  Alexander, 

1  Johns.  Ch.  394;  Gray  v.  Mansfield,  1  Vea.  379;  Belt,  Suppl.  107;  Fox  v. 
Mackreth,  2  Bro.  Ch.  400;  2  Cox,  320;  1  Lead.  Cas.  Eq.  92,  and  notes;  Den- 
nis V.  McCoy,  32  111.  429;  Safford  v.  Hinds,  39  Barb.  625;  Squire's  App., 
70  Penn.  St.  268.  [Sun  Dance,  etc..  Mining  Co.  v.  Frost,  7  Ariz.  289;  Eisert 
V.  Bowen,  117  App.  Div.  488,  102  N.  Y.  S.  707;  Seacoaet  R.  Co.  v.  Wood, 
65  N.  J.  Eq.  530;  Halsell  v.  Wise  County  Coal  Co.,  19  Tex.  Civ.  App.  564; 
Brookings  Land  &  Trust  Co.  v.  Bertness,  17  S.  D.  293;  Hughes  v.  Willson, 
128  Ind.  491;  Luscombe  v.  Grigsby,  11  S.  D.  408;  ElUs  v.  Allen,  99  Wis! 
598.] 

1  Reed  v.  Warner,  5  Paige,  650;  Sweet  v.  Jacocks,  6  Paige,  355;  Leee  v. 
Nuttall,  1  R.  &  M.  53;  Torrey  v.  Bank  of  Orleans,  6  Paige,  650;  Green- 
field's Est.,  2  Harris,  489;  Sheriff  v.  Neal,  6  Watts,  534;  Plumer  v.  Reed, 

2  Wright,  46;  Hoge  v.  Hoge,  1  Watte,  163;  Swartz  v.  Swartz,  4  Barr,  353; 
Harrold  v.  Lane,  3  Penn.  St.  268;  Jenkins  v.  Eldredge,  3  Story,  181;  Morris 
V.  Nixon,  1  How.  118;  Seichrist's  App.,  66  Penn.  St.  237;  Squire's  App., 
70  id.  268. 

(a)  Even  when  the  purchase  of  the  himself  at  a  slightly  greater  price, 

property  for  the  principal  does  not  taking  title  in  the  name  of  his  wife, 

lie  within  the  scope  of  the  agency,  if  the  principal  elects  to  take  the  land 

the  agent  cannot  purchase  for  him-  at  the  price  paid,  equity  will  decree 

self  or  for  another  person,  if  he  owes  the  agent's  wife  to  be  a  constructive 

the  duty  of  giving  his  principal  the  trustee.     Brookings  Land  &  Trust 

first  chance.      A  purchase  by  him  Co.  v.  Bertness,  17  S.  D.  293.    "If 

in  violation  of  this  duty  or  in  com-  one  employs  and  pays  an  agent  to 

petition  with  his  principal  will  give  Investigate  the  title  or  the  character 

the  latter  the  right  to  elect  to  hold  of  land  for  the  purpose  of  purchas- 

the  agent,  or  whoever  takes  title,  ing  it,  and  the  agent  uses  the  knowl- 

ae   a   constructive   trustee,    subject  edge  he  acquires  in  this  way  to  fore- 

to  the  right  to  be  reimbursed  for  stall  his  principal  and  obtain  a  title 

what    was    actually    paid    for    the  to  the  property  for  himself  it  is  no 

property.    Johnson  i;.  Knappe,  123  answer  to  the  suit  of  the  former  to 

N.  W.  857  (S.    D.    1909).      Thus  recover  the  land  from  his  agent,  that 

where  an  agent  employed  to  pur-  the  employer  never  had   any  title 

chase  land  at  a  price  not  to  exceed  or  interest  in  it  or  that  he  was  not 

$18    per  acre  finds  that  he  cannot  injured  by  the  act  of  the  agent." 

get  it  at  that   price,   but  without  Trice  v.   Comstock,    121    Fed.  620, 

consulting  his  principal  buys  it  for  57  C.  C.  A.  646,  61  L.  R.  A.  176. 

343 


§  206.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

to  the  principal  for  whom  he  acts,  and  if  the  agent  use  it  for 
his  own  benefit,  he  will  become  a  trustee  for  his  principal.^ 
Whenever  one  person  is  placed  in  a  relation  to  another,  by  the 
act  or  consent  of  that  other,  or  the  act  of  a  third  person,  or  of  the 
law,  so  that  he  becomes  interested  for  him  or  with  him  in  any- 
subject  of  property  or  business,  he  will  in  equity  be  prohibited 
from  acquiring  rights  in  that  subject  antagonistic  to  the  person 
with  whose  interest  he  has  been  associated.^  Therefore,  what- 
ever an  agent  may  be  employed  to  do,  he  cannot  use  his  posi- 
tion nor  the  knowledge  obtained  by  his  employment  to  obtain 

^  Gillett  V.  Peppercorne,  3  Beav.  78;  Taylor  v.  Salmon,  2  Mee.  &  Comp. 
139;  4  M.  &  C.  139;  Voorhees  v.  Church,  8  Barb.  136;  Van  Epps  t;.  Van  Epps, 
9  Paige,  237;  Torrey  v.  Bank,  &c.,  id.  649;  Cram  v.  Mitchell,  1  Sandf.  251; 
Dobson  V.  Racey,  3  Sandf.  61;  Reed  v.  Norris,  2  M.  &  Cr.  361;  Ringo  v. 
Binns,  10  Pet.  269;  Farnham  v.  Brooks,  9  Pick.  212;  Davis  v.  Hamlin,  108 
111.  39. 

'  Davis  V.  Hamlin,  108  111.  39;  Allen  v.  Jackson,  122  111.  567.  [Lagarde 
",  Anniston  Co.,  126  Ala.  496;  Merrick  v.  Waters,  51  N.  Y.  App.  Div.  83, 
64  N.  Y.  S.  542;  Gilbert  v.  Hewetson,  79  Minn.  326;  Frohlich  v.  Seacord, 
180  111.  85;  Walker  v.  Walker,  199  Pa.  St.  435.] 

Where  an  agent  of  a  theatre  cor-  not  wait  to  see  whether  or  not  the 
poration  whose  principal  places  of  venture  is  to  be  profitable.  Stein- 
business  were  held  on  lease,  procured  beck  t'.  Bon  Homme  Mining  Co., 
renewals  of  the  leases  to  another  152  Fed.  333,  81  C.  C.  A.  441. 
corporation,  the  latter  was  held  to  It  may  be  well  to  note  the  differ- 
be  a  constructive  trustee  of  the  ence  between  property  of  the  princi- 
leases  for  the  former  lessee.  Mc-  pal  in  the  custody  of  the  agent  and 
Court  V.  Singers-Bigger,  145  Fed.  property  of  which  the  agent  is  con- 
103.  structive  trustee  for  the  principal. 

But  the  fact  of  agency  does  not  With    respect    to    the    former    the 

require  the  agent  to  give  his  prin-  agent's  power  to  transfer  both  legal 

cipal  the  first  chance  at  every  bar-  and    equitable  title  rests  upon  his 

gain  which  comes  to  his  knowledge,  actual  or  apparent  authority.    With 

Copper   River   Mining   Co.  v.  Mc-  respect   to   property  which  he  has 

Clellan,    2    Alaska,    134;    Stanford  improperly    acquired    in    his    own 

V.  Mann,  167  111.  79.  name  and    which  he  holds,  there- 

When  the  principal  has  the  op-  fore,  as  constructive  trustee,  he  can 
tion  of  electing  to  adopt  the  pur-  transfer  his  legal  title  irrespective 
chase  of  the  agent  and  have  him  of  authority,  but  the  beneficial  in- 
declared  a  trustee,  he  must  exercise  terest  will  not  pass  except  to  bona 
his  option  within  a  reasonable  time  fide  purchasers  for  value  without 
after  learning  of  his  right.    He  can-  notice  of  the  constructive  trust. 

344 


CHAP.  VI. J  PRINCIPAL    AND    AGENT.  [§  206. 

a  bargain  from  his  principal.  Nor  can  he  take  advantage  of 
his  own  negHgence;  as  where  an  agent  allowed  his  principal's 
property  to  be  sold  for  taxes  and  bought  it  himself,  he  was 
held  as  a  trustee,  although  the  relation  of  principal  and  agent 
had  ceased.^  In  some  cases  he  may  innocently  purchase  of  his 
principal;  but  if  he  conceals  himself  and  acts  through  another, 
either  in  purchasing  from  or  selling  to  his  principal,  he  may  be 
held  as  a  trustee,  or  the  contract  may  be  entirely  avoided ;  ^ 
or  if  he  accepts  any  benefits  in  conducting  the  business  of  his 
principal,  he  will  hold  them  in  trust  for  him,^  or  if  he  makes  use 
of  his  position  in  any  way  to  obtain  a  title  to  himself.^  If  in 
matters  within  the  purposes  of  his  agency  he  takes  a  conveyance 
in  his  own  name,  he  is  a  trustee  ex  maleficio,^  as  if  he  buys  a 
tax  certificate  for  his  principal  and  then  takes  the  deed  in  his 
own  name.^  And  where  one  partner  C.  gets  a  lease  of  the 
premises  in  his  father's  name  when  the  other  partner  D.  had  a 
right  to  expect  he  would  secure  a  joint  lease  for  the  partner- 
ship, C.'s  father  holds  in  trust  not  only  for  C.  but  for  D.  also.^ 
So  if  he  buys  for  himself  and  his  partner  the  land  which  he  was 
engaged  to  buy  for  the  plaintiff,  and  has  the  deed  made  to  his 

1  Morris  v.  Joseph,  1  W.  Va.  256.  [Sun  Dance,  etc.,  Mining  Co.  v.  Frost, 
7  Ariz.  2S9.] 

'  Winn  V.  Dillon,  27  Miss.  494;  Lewis  v.  Hillman,  3  H.  L.  Cas.  629; 
Parkist  v.  Alexander,  1  Johns.  Ch.  394;  Sweet  v.  Jacocks,  6  Paige,  364; 
Bank  of  Orleans  v.  Torrey,  7  Hill,  260;  9  Paige,  653;  Myer's  App.,  2  Barr, 
463;  Rankin  v.  Porter,  7  Watts,  387;  Piatt  v.  Oliver,  2  McLean,  267;  3  How. 
353;  Church  v.  Ins.  Co.,  1  Mason,  341;  Teakle  v.  Barley,  2  Brock.  44;  Old- 
ham V.  Jones,  5  B.  Mon.  467;  Banks  v.  Judah,  8  Conn.  146;  Copeland  v. 
Ins.  Co.,  6  Pick.  198;  McGregor  v.  Gardner,  14  Iowa,  326;  Clark  v.  Lee,  id. 
425.    [Tyler  v.  Sanborn,  128  111.  136.] 

'  Bailey  v.  Watkins,  Sug.  Law  of  Prop.  726;  Gaskell  v.  Chambers,  26 
Beav.  360.     [Lister  v.  Stubbs,  45  Ch.  Div.  1.] 

*  Smith  V.  Wright,  49  111.  403. 

"  Squire's  App.,  70  Penn.  St.  268;  McMurry  v.  Mobley,  39  Ark.  313; 
Vallette  v.  Tedens,  122  111.  607;  Byington  v.  Moore,  62  Iowa,  470;  Kraemer 
V.  Duestermann,  37  Minn.  469.  [Seacoast  R.  Co.  v.  Wood,  65  N.  J.  Eq. 
530;  Copper  River  Mining  Co.  v.  McClellan,  2  Alaska,  134;  Roby  t;.  Cole- 
hour,  135  111.  300;  McCourt  t-.  Singers-Bigger,  145  Fed.  103.] 

8  CoUins  V.  Rainey,  42  Ark.  531. 

'  Gushing  v.  Danforth,  76  Maine,  114. 

345 


206. 


CONSTRUCTIVE   TRUSTS. 


[chap.  VI. 


partner  and  pays  the  money  from  his  own  funds,  still  a  trust 
will  result,  and  the  payment  will  be  considered  only  as  a  loan, 
on  security  of  the  title.^  But  where  one  breaks  a  mere  parol 
agreement  to  buy  land  for  another  and  buys  it  himself,  there 
is  no  trust,  but  only  a  breach  of  parol  contract.^  The  test  is 
whether  the  act  is  inconsistent  with  duties  resulting  from  a 
relation  of  confidence  between  the  parties.^  (a) 

'  Bryan  v.  McNaughton,  38  Kans.  98. 

'  Hackney  v.  Butts,  41  Ark.  394.    See  §  134. 

3  Farley  v.  Kittson,  27  Minn.  102,  at  105. 


(a)  By  the  weight  of  American 
authority,  a  mere  parol  agreement  to 
purchase  land  for  another  does  not 
create  such  a  fiduciary  relation  that 
the  promisor  will  be  declared  a 
constructive  trustee  if  he  pxirchases 
for  himself  with  his  own  money. 
Mitchell  V.  Wright,  155  Ala.  458; 
Butts  V.  Cooper,  152  Ala.  375;  Scrib- 
ner  v.  Meade,  10  Ariz.  143;  Parra- 
more  v.  Hampton,  55  Fla.  672; 
Wilhite  V.  Skelton,  5  Ind.  Ter.  621, 82 
S.  W.  932;  Forrest  v.  O'Bryan,  126 
Iowa,  571;  Burden  v.  Sheridan,  36 
Iowa,  125;  Fischli  v.  Dumaresly, 
3  A.  K.  Marsh.  23;  Camden  Land 
Co.  V.  Lewis,  101  Me.  78;  Bourke  v. 
Callanan,  160  Mass.  195;  Emerson 
V.  Galloupe,  158  Mass.  146;  Parsons 
V.  Phelan,  134  Mass.  109;  Colhns  v. 
SuUivan,  135  Mass.  461;  Dougan 
V.  Bemis,  95  Minn.  220;  Largey  v. 
Leggat,  30  Mont.  148;  Nestal  v. 
Schmid,  29  N.  J.  Eq.  458;  Wallace 
f;.  Brown,  10  N.  J.  Eq.  308;  Wheeler 
V.  Hall,  54  App.  Div.  (N.  Y.)  49; 
Lancaster  Trust  Co.  v.  Long,  220 
Pa.  St.  499;  Whiting  v.  Dyer,  21 
R.  I.  278;  Naah  v.  Jones,  41  W.  Va. 
769.  See  also  Lyons  v.  Bass,  108 
Ga.  573. 

These  decisions  seem  not  to  have 

346 


been  intended  to  impeach  the  doc- 
trine, that  one  holding  a  fiduciary 
relation  to  another  will  be  a  con- 
structive trustee  for  the  latter  as 
to  all  property  which  his  duty  as 
fiduciary  requires  that  he  should 
acquire  for  him.  They  must  be 
taken  as  holding  no  more  than  that 
the  mere  parol  agreement  to  buy 
for  another  does  not  create  such  a 
relation  of  trust  and  confidence 
that  equity  should  interfere  to  do 
justice  in  case  of  a  breach  of  the 
agreement.  Probably  all  courts 
would  agree  that  if  the  purchaser 
is  clearly  shown  to  be  an  agent 
and  his  duty  as  agent  required 
him  to  purchase  for  his  principal, 
he  would  be  a  constructive  trus- 
tee. Roby  V.  Colehour,  135  111. 
300;  Hughes  v.  Willson,  128  Ind. 
491;  Ellis  r.  Allen,  99  Wis.  598; 
Seacoast  R.  Co.  v.  Wood,  65 
N.  J.  Eq.  530;  Holmes  v.  Holmes, 
106  Ga.  858;  Sherman  v.  Herr,  220 
Pa.  St.  420. 

If  it  is  shown  that  the  parol 
agreement  has  given  the  alleged 
trustee  a  material  advantage  en- 
abling him  to  acquire  the  property 
at  a  smaller  price,  some  courts  seem 
inclined  to  declare  him  a  construe- 


CHAP.  VI.] 


TRUSTEES  OF  CORPORATIONS. 


[§  207. 


§  207.   The  directors  of  corporations  are  trustees  and  agents 
of  the  shareholders  and  of  the  corporation,  and  the  same  rules 


tive  trustee,  when  they  would  not 
do  so  on  proof  of  the  parol  agree- 
ment only.  See  Scribner  v.  Meade, 
10  Ariz.  143;  Largey  v.  Leggat,  30 
Mont.  148;  Woodfin  v.  Marks,  104 
Tenn.  512. 

There  is  considerable  authority 
for  the  view  that  a  parol  agreement 
to  purchase  for  another  creates  an 
agency  notwithstanding  the  statute 
of  frauds,  and  that  the  unfaithful 
agent  will  be  declared  a  constructive 
trustee  if  he  purchases  on  his  own 
account.  Koyer  v.  Willmon,  150 
Cal.  785;  Chastain  v.  Smith,  30 
Ga.  96;  Rose  v.  Hayden,  35  Kan. 
106;  Johnson  v.  Hay  ward,  74  Neb. 
157,  5  L.  R.  A.  (n.  s.)  112;  Morris 
V.  Reigcl,  19  S.  D.  26;  Halscll  v. 
Wise  County  Coal  Co.,  19  Tex. 
Civ.  App.  564.  In  England  the  case 
of  Bartlett  v.  Pickersgill,  1  Eden, 
515,  4  East,  577,  was  for  a  long  time 
considered  as  having  settled  the 
law  on  this  point  against  a  con- 
structive trust,  but  in  a  dictum  in 
Heard  v.  Pilley,  4  Ch.  548,  it  waa 
declared  that  Bartlett  v.  Pickersgill 
could  not  be  considered  law  in  Eng- 
land. In  another  dictum  in  the  later 
case  of  James  v.  Smith,  [1S91]  1  Ch. 
384,  the  doctrine  of  Bartlett  v.  Pick- 
ersgill was  stated  to  be  good  law 
notwithstanding  Heard  v.  Pillej-.  In 
a  still  later  case,  Rochefoucauld  v. 
Boustead,  [1897]  1  Ch.  196,  it  was 
held  that  the  doctrine  of  Bartlett  v. 
Pickersgill  was  no  longer  law  in 
England  and  that  the  dictum  in 
James  v.  Smith  was  not  a  correct 
statement  of  the  law.  The  facts 
of  Rochefoucauld  v.  Boustead  did 
not   raise   the   precise   point   under 


discussion,  since  the  arrangement 
which  was  held  to  create  a  fiduciary 
relation  was  between  the  mortgagor 
of  property  and  a  third  person  who 
had  been  delegated  to  buy  in  the 
property  at  a  foreclosure  sale  upon 
the  understanding  that  he  would 
hold  the  title  as  security  merely 
for  what  he  paid. 

Where  the  title  has  been  ac- 
quired by  purchase  at  foreclosure 
sale  or  a  sale  on  execution  after  an 
oral  agreement  with  the  owner  of 
the  property  to  bid  it  in  for  him, 
most  courts  seem  to  agree  that  the 
purchaser  will  be  charged  with  a 
constructive  trust,  if  necessary, 
subject  to  his  right  to  reimbursement 
for  what  he  has  paid  out.  Waller 
V.  Jones,  107  Ala.  331;  Holmes  i;. 
Holmes,  106  Ga.  858;  Collins  v. 
Williamson,  94  Ga.  635;  Pope  v. 
Dapray,  167  111.  478;  Carr  v.  Craig. 
138  Iowa,  526;  Parker  v.  Catron, 
120  Ky.  145;  Griffin  v.  Schlenk,  102 
S.  W.  837  (Ky.  1907);  Carter  v. 
Dotson,  92  S.  W.  600  (Ky.  1906); 
Phillips  V.  Hardenburg,  181  Mo. 
463;  Dickson  v.  Stewart,  71  Neb. 
424;  Ryan  v.  Dox,  34  N.  Y.  307; 
Davis  V.  Kerr,  141  N.  C.  11;  Hinton 
I'.  Pritchard,  107  N.  C.  128;  Coleman 
V.  McKee,  24  R.  I.  596;  Woodfin  v. 
Marks,  104  Tenn.  512;  Chatlwick 
V.  Arnold,  34  Utah,  48;  Frost  v. 
Perfield,  44  Wash.  185;  Ellis  v. 
Allen,  99  Wis.  598;  Cutler  v.  Bab- 
cock,  81  Wis.  195;  Rochefoucauld 
V.  Boustead,  [1897]  1  Ch.  196.  See 
Eisert  v.  Bowen,  102  N.  Y.  S.  707, 
117  App.  Div.  488;  Avery  v.  Stewart, 
136  N.  C.  426.  But  the  contrary 
view  has  beeu  taken  in  Massachu- 

347 


§  207.] 


CONSTRUCTIVE   TRUSTS. 


[chap.  Vl. 


are  applied  to  the  contracts  of  directors  with  the  corporation 
as  are  applied  to  the  dealings  of  other  parties  holding  a  fiduciary 


setts.      Bourke    v.    Callanan,    160 
Mass.  195. 

In  some  of  these  cases  additional 
facts  made  the  equity  stronger,  as 
where  the  purchaser  was  enabled 
to  obtain  a  better  bargain  because 
of  his  understanding  with  the  owner, 
Coleman  v.  McKee,  24  R.  I.  596; 
Phillips  V.  Hardenburg,  181  Mo.  463; 
Avery  t;.  Stewart,  136  N.  C.  426; 
or  where  the  purchaser  occupied 
a  position  of  trust  and  confidence 
apart  from  that  raised  by  the  oral 
agreement.  Frost  v.  Perfield,  44 
Wash.  185  (lessor);  Carter  i^.  Dotson, 
92  S.  W.  600  (Ky.  1906)  (son-in- 
law);  Griffin  v.  Schlenk,  102  S.  W. 
837  (Ky.  1907)  (a  co-owner);  Eisert 
V.  Bowen,  117  N.  Y.  App.  Div.  488, 
102  N.  Y.  S.  707.  In  Avery  v. 
Stewart,  136  N.  C.  426,  at  p.  442,  it 
is  said :  "The  mere  non-performance 
of  a  beneficial  parol  agreement  is 
not  such  fraud  or  bad  faith  as  will 
induce  a  court  of  equity  to  compel 
performance.  There  must  be  a 
salutary  and  proper  limitation  of  the 
doctrine  of  parol  trusts,  and  it  will 
be  found,  we  think,  in  confining  the 
equity  to  enforce  trusts  arising  out 
of  parol  agreements  to  transactions 
involving  some  element  of  fraud  or 
bad  faith  apart  from  the  mere 
breach  of  the  agreement  itself,  which 
makes  it  inequitable  that  the  vendee 
should  hold  the  legal  title  absolutely 
or  discharged  of  any  trust.  In  this 
case  it  is  apparent  that  the  defend- 
ant would  never  have  acquired  the 
legal  title  to  the  land  if  the  plaintiff 
had  not  requested  him  to  advance 
the  money  and  take  the  title  in  trust 
for  him,  and  if  he  had  not  solemnly 

348 


promised  to  do  so.  If  he  had  de- 
clined, the  plaintiff  no  doubt  would 
have  made  other  arrangements  to 
secure  the  title  for  himself." 

Where  the  purchase  is  at  a  sale  on 
execution  or  on  foreclosure  of  a 
mortgage,  it  has  been  suggested  that 
a  purchaser  who  buys  with  the 
understanding  that  he  will  hold  the 
title  merely  as  security  for  what 
he  pays,  is  in  the  same  position  as  a 
person  taking  an  absolute  convey- 
ance directly  from  the  title  holder 
with  a  parol  defeasance,  since  a 
sheriff's  sale  or  a  mortgagee's  sale 
is,  in  the  eye  of  the  law,  a  transfer 
by  the  debtor  or  mortgagor.  Dick- 
son V.  Stewart,  71  Neb.  424;  StafTord 
V.  Stafford,  29  Tex.  Civ.  App.  73. 

Where  one  has  purchased  prop- 
erty with  his  own  funds  under  a 
parol  agreement  to  hold  the  title 
for  another  until  he  is  reimbursed, 
a  resulting,  rather  than  a  construc- 
tive, trust  arises,  since  the  funds  used 
in  such  a  case  are  really  lent  to  the 
cestui  and  are  his  at  the  time  of  the 
purchase.  If  this  was  the  situation 
at  the  time  the  property  was  bought, 
the  title  holder  cannot  subsequently 
change  it  by  repudiating  his  parol 
agreement,  even  in  those  juris- 
dictions where  he  would  not  be  held 
to  be  a  constructive  trustee  because 
of  his  agency.  See  dissenting  opin- 
ion in  Bourke  v.  Callanan,  160  Mass. 
195;  Miller  v.  Miller,  101  Md.  600; 
HerUhy  v.  Coney,  99  Me.  469;  Towle 
V.  Wadsworth,  147  111.  80;  Dooly  v. 
Pinson,  39  So.  664  (Ala.). 

When  the  person  who  has  orally 
agreed  to  purchase  for  another 
uses    the    latter's    funds    or    other 


CHAP.  VI.]       TRUSTEES  OF  CORPORATIONS.         [§  207. 

relation  to  each  other.'  (a)  The  directors  are  intrusted  with 
the  management  of  the  property  of  the  corporation  for  the 
best  interests  of  all  the  members,  and  the  directors  are  bound 
to  execute  their  trust;  nor  must  they  allow  their  private  inter- 
ests to  interfere  with  the  duties  of  the  trust  that  they  have  as- 
sumed, nor  assume  a  position  tending  to  produce  a  conflict 
between  their  private  interests  and  the  discharge  of  their 
fiduciary  duties.^    It  is  said  that  the  contracts  of  trustees  are 

1  Gaskell  v.  Chambers,  26  Beav.  360;  Great  Luxembourg  R.  Co.  v. 
Magnay,  25  Beav.  586;  Ex  -parte  Bennett,  18  Beav.  339;  Cumberland  Coal 
Co.  V.  Hoffman  Steam  Coal  Co.,  18  Md.  456;  Cumberland  Coal  Co.  v.  Sher- 
man,30  Barb. 553;  25  Md.  117;  Aberdeen  R.  Co.  v.  Blaikie,  1  McQueen,  461 ; 
Michoud  V.  Girod,  4  How.  544;  Hodges  v.  New  Eng.  Screw  Co.,  1  R.  I. 
321;  York  &  North  Midland  R.  Co.  v.  Hudson,  16  Beav.  485;  19  Eng.  L. 
&  Eq.  365;  Benson  v.  Heathome,  6  Y.  &  C.  C.  C.  326;  Verplanck  v.  Ins. 
Co.,  1  Edw.  Ch.  84;  Percy  v.  Milladon,  3  La.  568;  Robinson  v.  Fmith,  3 
Paige,  222;  Murray  f.  Vanderbilt,39Barb.237;  Flint,  &c.R.R.Co.t;.  Dewey, 
14  Mich.  477;  European  &  N.  Am.  Railw.  Co.  v.  Poor,  59  Maine,  277;  Scott 
V.  Depeyster,  1  Edw.  Ch.  513;  Butts  v.  Wood,  38  Barb.  188;  Ashuret's  App., 
60  Pa.  St.  290;  Drury  v.  Cross,  7  Wall.  299;  Sawyer  v.  Hoag,  17  Wall.  010; 
Land  Credit  Co.  v.  Fermoy,  L.  R.  8  Eq.  12;  Bank  Com'rs  v.  Bank  of  Buffalo, 
6  Paige,  503. 

2  It  is  a  breach  of  trust  for  railroad  directors  to  assume  inconsistent 
obligations  by  becoming  members  of  a  company  with  whom  they  have 
made  a  contract  to  build  and  equip  their  road;  and  in  such  case  no  ques- 

property  in  payment,  all  courts  would  101;  35  Am.  L.,  Reg.  n.  s.  713. 
raise  a  constructive  trust,  if  the  Where  a  person  who  was  promoter 
circumstances  did  not  cause  a  trust  and  president  of  a  corporation  agreed 
to  result.  Sanford  t'.  Hamner,  115  with  the  other  members  to  purchase 
Ala.  406;  Gashe  v.  Young,  51  Ohio  a  site  for  its  plant  with  money  to  be 
St.  376;  Boswell  v.  Cunningham,  treated  as  a  payment  on  his  sub- 
32  Fla.  277;  Lee  v.  Patten,  34  Fla.  scription  to  its  stock,  and  after  mak- 
149.  ing  such  payment,  and  secretly 
(a)  Promoters  of  a  corporation  taking  the  deed  in  his  own  name, 
cannot  rightfully  gain  any  advan-  constructed  the  plant  with  corporate 
tage  over  other  members  and  are  funds,  leading  the  other  members  to 
liable  for  profits  received  by  them  suppose  that  the  corporation  owned 
in  violating  their  duty.  Fountain  the  land,  he  was  held  to  be  a  con- 
Spring  Park  Co.  v.  Roberts,  92  Wis.  structive  trustee  ex  maleficio  of  the 
345,  347;  Old  Dominion,  etc.,  Co.  v.  land  for  the  corporation's  benefit. 
Bigelow,  203  Mass.  159;  see  Yale  Nester  v.  Gross,  66  Minn.  371.  See 
Gas  Stove  Co.  v.  Wilcox,  64  Conn,  supra,  §  178. 

349 


§  207.)  CONSTRUCTIVE  TRUSTS.  [CHAP.  VI. 

of  two  classes.  One  class  consists  of  contracts  made  by  trustees 
with  themselves,  or  with  a  board  of  trustees  or  directors  of 
which  they  are  members.  These  contracts  are  void  from  the 
fact  that  no  man  can  contract  with  himself.  If,  therefore,  a 
board  of  directors  should  convey  all  the  property  of  a  corpora- 
tion to  themselves,  the  conveyance  would  be  void,  without  any 
inquiry  into  its  fairness,  or  whether  it  was  beneficial  to  the 
corporation  or  not.  And  the  same  rule  applies  if  a  board  of 
directors  convey  the  property  of  a  corporation,  or  any  part  of 
it,  to  one  of  their  number,  he  being  one  of  the  trustees  negotia- 
ting a  contract  with  himself.^  And  the  same  rule  was  applied 
where  the  trustees  of  one  corporation,  being  the  trustees  of 
another  corporation,  conveyed  the  property  of  the  one  corpora- 
tion to  another,  although  there  was  a  decree  of  court.^  The 
other  class  of  contracts  is  w^here  a  trustee  contracts  with  the 
cestui  que  trust,  or  a  third  person.  These  contracts  are  not 
void;  as  where  a  director  makes  a  purchase  of  property  from 
the  corporation  itself,  acting  independently  of  its  directors,  the 
contract  is  not  void;  but  the  same  rules  apply,  that  apply  to 
other  trustees  purchasing  of  the  cestui  que  tru^t:  the  burden  is 
upon  the  trustee  to  vindicate  the  transaction  from  all  suspi- 
cion.^ And  so  all  advantages,  all  purchases,  all  sales,  and  all 
sums  of  money  received  by  directors  in  dealing  with  the  prop- 

tion  will  be  allowed  to  be  raised  as  to  the  fairness  of  the  transaction,  and  no 
injury  to  the  cestui  que  trust  need  be  proved.  Oilman  C.  &  S.  R.  R.  Co. 
V.  Kelly,  77  111.  426.  But  where  stockholders  sanction  a  contract  under 
which  directors  loan  money  to  the  corporation,  and  its  bonds  secured  by 
mortgage  are  given,  if  the  money  is  properly  applied,  the  corporation  is 
estopped  from  setting  up  that  the  bonds  and  mortgage  are  void  by  reason 
of  the  trust  relations  which  directors  sustain  to  it.  Hotel  Co.  v.  Wade, 
97  U.  S.  75.  A  director  who  receives  paid-up  shares  from  the  promoters  of 
the  corporation  for  acting  as  director  will  hold  as  trustee,  and  may  be 
required  to  pay  the  highest  value  of  the  shares  at  the  election  of  the  com- 
pany.   Nant-y-Glo  &  Blaina  Iron  Works  Co.  v.  Grave,  L.  R.  12  Ch.  738. 

1  Cumberland  Coal  Co.  v.  Sherman,  30  Barb.  563;  Ogden  v.  Murray  39 
N.  Y.  202;  Bliss  t;.  Matteson,45  N.  Y.  22;  Buffalo,  &c.  R.  R.Co.  v.  Lampson, 
47  Barb.  533;  Imperial  Mer.  Cred.  Ass'n  v.  Coleman,  L.  R.  6  Ch.  565. 

*  St.  James  Church  v.  Church  of  the  Redeemer,  45  Barb.  356. 

»  Ibid.;  Beeaon  v.  Beeson,  9  Penn.  St.  280. 

350 


CHAP.  VI.]  INDUCEMENTS   TO   MARRY.  [§  208. 

erty  of  the  corporation,  are  made  and  received  by  them  as 
trustees  of  the  corporation,  and  they  must  accoimt  for  all  such 
moneys,  or  advantages  received  by  them  by  reason  of  their 
position  as  trustees.'  (a) 

§  208.  Again,  if  the  parents,  relations,  agents,  or  friends  of 
young  persons  hold  out  inducements  of  marriage  by  represent- 
ing the  amount  of  property  that  will  come  to  one  or  the  other 
of  the  parties;  or  if  they  hold  out  pecuniary  considerations  tft 
induce  the  marriage,  and  if  the  marriage  and  a  marriage  settle- 
ment take  place  upon  the  faith  of  such  representations  and 
inducements,  the  persons  making  them  will  be  bound  to  make 
them  good :  if  the  persons  making  the  representations  and  hold- 
ing out  the  inducements  have  the  property  referred  to  in  their 
hands  or  under  their  control,  a  court  of  equity  will  construe 
them  into  trustees  of  such  property  for  the  parties  to  whom  the 
inducements  were  held  out;  and  the  court  will  compel  them  to 
execute  the  trust  by  making  good  the  representations  or  in- 
ducements, if  they  are  of  such  a  character  that  a  party  entering 
into  a  marriage  might  reasonably  have  relied  upon  them.-  If, 
however,  a  person  states  his  intention  to  confer  property  upon 
one  of  the  parties  to  a  marriage,  as  that  he  has  made  his  will 
giving  a  certain  estate  to  one  of  the  parties,  and  that  he  does 
not  know  any  reason,  or  have  any  intention  of  altering  it,  but 

1  Gaakell  v.  Chambers,  26  Beav.  360;  Bowers  v.  City  of  Toronto,  11 
Moore,  P.  C.  Cas.  463;  Ex  parte  Hill,  32  L.  J.  Ch.  154. 

*  Hamersley  v.  De  Biel,  12  CI.  &  Fin.  45;  Downes  v.  Jennings,  32  Beav. 
290;  Hunt  v.  Mathews,  1  Vern.  408;  Walford  v.  Gray,  11  Jur.  (n.  s.)  106,  403; 
Jordan  v.  Money,  5  H.  L.  Cas.  185;  8  Jur.  (n.  s.)  281 ;  Caton  v.  Caton,  L.  R. 

2  H.  L.  127;  Coverdale  v.  Eastwood,  L.  R.  15  Eq.  122;  Saunders  v.  Cramer, 

3  Dr.  &  War.  87;  Moorhouse  v.  Cahan,  15  Beav.  341;  Laver  r.  Fielder,  32 
Beav.  1;  1  Story's  Eq.  Jur.  §§  268-272. 

(a)  Directors,   or    other    officers  for  the  bene6t  of  the  corporation, 

of  a  corporation,   who   acquire  an  subject  to  reimbursement  for  their 

interest  in  property  which  is  adverse  actual  outlay.    Lagarde  v.  Anniston 

to  the  interests  of  the  corporation  Co.,    126    Ala.    496;    Northwestern 

in  the  same  property  may  be  re-  Land  Assoc,  i'.  Grady,  137  Ala.  219. 
quired  to  hold  such  interest  in  trust 

351 


§  209.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

at  the  same  time  refuses  to  make  any  contract  or  agreement,  or 
to  be  bound  in  any  way  not  to  alter  his  will,  equity  will  not 
compel  the  execution  of  such  a  representation  or  intention; 
and  the  estate  named  cannot  be  affected  by  a  constructive 
trust  in  favor  of  the  party  to  the  marriage,  in  case  the  will  is 
afterwards  altered,  and  the  estate  is  given  to  some  other  person.* 

§  209.  These  rules  apply  to  every  kind  of  fiduciary  relation. 
The  principle  is  the  same  in  all  of  them.  Assignees  of  bankrupt 
or  insolvent  estates  are  subject  to  the  same  rules,  whether  they 
are  appointed  by  courts  and  by  operation  of  law,  or  by  volun- 
tary assignments,  or  by  deeds  of  trust  for  creditors.^  So  the 
solicitors  of  a  bankrupt  cannot  purchase  his  property.  Com- 
mittees or  guardians  of  a  lunatic  cannot  obtain  the  ownership 
of  the  property,^  nor  can  the  directors,  trustees,  or  governors  of 
a  charity  so  deal  with  the  funds  of  the  charity,  or  take  leases 
of  the  charity  lands,  as  to  make  a  profit  to  themselves.'*  And 
so  of  partners  and  joint  contractors,  or  purchasers  and  receivers. 
In  all  these  cases  the  fiduciary  must  account  for  all  the  trust 
property  that  comes  to  his  hands,  whether  by  purchase  or 
otherwise,  and  for  all  profits  which  may  come  to  him  by  dealing 
with  such  property,  and  even  for  all  bonuses  or  gratuities  given 
to  him  by  strangers  for  contracts  made  with  them  in  relation 
to  the  trust  property.^     For  example,  a  bank  officer  cannot 

^  Maunsell  v.  Hedges,  4  H.  L.  Cas.  1039;  1  Lead.  Cas.  Eq.  782;  Kay 
V.  Crook,  3  Sm.  &  Gif.  407;  Stroughill  v.  GulUver,  2  Jur.  (n.  s.)  700;  Randall 
V.  Morgan,  12  VeB.  67;  De  Biel  v.  Thompson,  3  Beav.  469,  475;  1  Jon.  &  La. 
539,  569. 

2  Ex  parte  Hughes,  6  Ves.  617;  Morse  v.  Royal,  12  Ves.  372;  Ex  paTte 
Morgan,  id.  6;  Ex  parte  Lacey,  6  Ves.  625;  Ex  parte  Reynolds,  5  Ves.  705; 
Ex  parte  Bennett,  10  Ves.  381 ;  Campbell  v.  McLain,  23  Leg.  Intel.  26,  Phila.; 
Fisk  V.  Sarber,  6  W.  &  S.  18;  Beeson  v.  Beeson,  9  Barr,  284;  Dorsey  v.  Dorsey, 
3  H.  &  J.  410;  Chapin  v.  Weed,  1  Clark,  264;  Saltmarsh  v.  Beene,  4  Porterj 
283;  Harrison  v.  Mocks,  10  Ala.  185;  Wade  v.  Harper,  3  Yerg.  383. 

3  Wright  V.  Proud,  13  Ves.  136;  Campbell  v.  McLain,  51  Penn.  St.  200, 
*  Att.  Gen.  v.  Clarendon,  17  Ves.  500. 

'  Bailey  v.  Watkins,  Sug.  Law  of  Prop.  726;  Parshall's  App.,  65  Penn. 
St.  233;  Swissholm's  App.,  56  id.  475;  King  v.  Wise,  43  Cal.  628;  Carr  v. 

352 


CHAP.  VI.]  UNDEFINED    FIDUCIARY    RELATIONS.  (§  210. 

make  a  profit  for  himself  by  loaning  the  bank's  money,  but 
will  have  to  bear  all  losses  arising  from  the  attempt.'  Whenever 
two  persons  stand  in  such  relation  that  confidence  is  necessarily 
reposed  by  one,  and  the  influence  growing  out  of  that  fact  is 
possessed  by  the  other,  and  this  confidence  is  abused  or  the 
influence  is  exerted  to  obtain  an  advantage  at  the  expense  of 
the  confiding  party,  the  party  so  availing  himself  of  his  position 
will  not  be  permitted  to  retain  the  advantage.^  Trustees  cannot 
use  their  relations  to  the  trust  property  for  their  personal 
advantage.^ 

§  210.  But  equity  goes  even  further  than  this.  It  not  only 
watches  over  these  defined  relations  of  parties,  but  it  scruti- 
nizes the  undefined  relations  of  friendly  habits  of  intercourse, 
personal  reliance,  and  confidential  advice.^  It  is  well  known  that 
habits  of  kindness,  confidence,  and  trust  grow  between  neigh- 
bors and  friends;  and  if  advantage  is  taken  of  such  relations  to 
obtain  an  unfair  bargain,  equity  will  set  it  aside  or  convert  the 
offending  party  into  a  trustee.^  Of  course  no  rules  can  be  laid 
down  by  which  to  judge  all  such  cases;  for  every  case  must  of 
necessity  depend  upon  its  own  facts.^  Nor  will  a  gift  or  sale 
be  set  aside  merely  because  it  is  to  a  confidential  friend  or  ad- 
viser, even  though  it  is  made  by  an  old  and  infirm  person,  or 
by  one  of  weak  mind ;  but  if  there  is  any  proof  of  any  superadded 
concealment,  misrepresentation,  or  contrivance,  or  any  art  by 
which  the  party  was  thrown  off  his  guard,  or  unduly  influenced 
by  his  trust  and  confidence  in,  or  partiality  for  a  supposed 

Houser,  46  Ga.  477.  [See  Frohlich  v.  Seacord,  180  111.  85.  But  see 
Heckscher  v.  Blanton,  66  S.  E.  859  (Va.  1910).] 

»  Oakland  Bank  of  Savings  v.  Wilcox,  60  Cal.  126.  See  also  Dowling 
V.  Feeley,  72  Ga.  557. 

'  Bohm  V.  Bohm,  9  Col.  100. 

'  Ellicott  V.  Chamberlin,  38  N.  J.  Eq.  604. 

*  Hunter  i-.  Atkins,  3  M.  &  K.  140;  James  v.  Holmes,  8  Jur.  (n.  s.)  553, 
732;  Falk  v.  Turner,  101  Mass.  194. 

*  Ibid.;  Dent  t;.  Bennett,  4  M.  &  Cr.  277;  Smith  v.  Kay,  7  H.  L.  Cas. 
750. 

*  Hunter  t;.  Atkins,  3  M.  &  K.  140. 

VOL.  I.  —  23  353 


§  211.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

friend,  equity  will  interpose  and  correct  the  wrong.^  Dealings 
of  ship-owners  with  their  masters,^  of  parishioners  with  their 
clergymen,^  of  medical  advisers  with  their  patients/  of  friends 
and  neighbors  who  by  their  suitation  and  habits  of  intercourse 
have  obtained  the  confidence  of  each  other,^  and  of  a  man  and 
woman  living  together  as  husband  and  wife,^  come  within  this 
rule.  And  so  the  relation  of  landlord  and  tenant,  partner  and 
partner,  principal  and  surety,  and  tenants  in  common  (a)  may 
create  such  influences  of  trust  and  confidence  that  courts  of 
equity  will  construe  a  trust  to  arise  out  of  their  contracts,  or 
will  decree  such  contracts  to  be  set  aside.  ^ 

§  211.  So  property  obtained  by  one  through  the  fraudulent 
practices  of  a  third  person  will  be  held  under  a  constructive 
trust  for  the  person  defrauded,  though  the  person  receiving  the 
benefit  is  innocent  of  collusion.  If  such  person  accepts  the  prop- 
erty, he  adopts  the  means  by  which  it  was  procured;  or,  as 

»  Dent  V.  Bennett,  7  Sim.  539;  4  M.  &  C.  269;  Huguenin  v.  Baseley, 
14  Ves.  273;  Gibson  v.  Russell,  2  N.  C.  C.  104;  Griffiths  v.  Robins,  3  Madd. 
191;  Popham  v.  Brooke,  5  Russ.  8;  Maul  v.  Reder,  51  Penn.  St.  377;  Lengen- 
fitter  V.  Ritching,  58  Penn.  St.  487. 

2  Shallcross  v.  Oldham,  2  John.  &  H.  609. 

»  Greenfield's  Estate,  24  Penn.  St.  232;  Scott  v.  Thompson,  21  Iowa, 
599. 

*  Pratt  V.  Barker,  1  Sim.  1;  4  Russ.  507;  Crisspell  v.  Dubois,  4  Barb. 
393;  Billing  v.  Southee,  10  Eng.  L.  &  Eq.  37. 

5  Hunter  v.  Atkins,  3  M.  &  K.  113;  Greenfield's  Estate,  14  Penn.  St. 
489;  Cooke  v.  Lamotte,  15  Beav.  234;  Smith  v.  Kay,  7  H.  L.  Cas.  750. 

«  James  v.  Holmes,  9  Jur.  (n.  s.)  553,  732;  4  De  G.,  F.  &  J.  470. 

^  Maddeford  v.  Austwick,  1  Sim.  89;  Farnham  v.  Brooks,  9  Pick.  212; 
Oliver  v.  Court,  8  Price,  127;  Griffiths  v.  Robins,  3  Madd.  191;  People  v. 
Jansen,  7  Johns.  332;  2  Johns.  554;  Dawson  v.  Lawes,  Kay,  280;  Camp- 
bell V.  Moulton,  30  Vt.  667;  Boultbee  v.  Stubbs,  18  Ves.  23;  Ex  parte  Rush- 
forth,  10  Ves.  409;  Hayes  v.  Ward,  4  Johns.  Ch.  123;  Mayhew  v.  Crickett 
2  Swanst.  186;  Keller  v.  Auble,  58  Penn.  St.  412;  Duff  v.  Wilson,  72  id.  442; 
Mandeville  v.  Solomon,  33  Cal.  38. 

(a)  Tanney  v.  Tanney,  159  Pa.  93  Va.  332;  Brundy  v.  Mayfield,  15 

St.  277;  Van  Wagenen  v.  Carpenter,  Mont.  201;  Parker  t-.  Brast,  45  W. 

27  Colo.  444;  Turner  v.  Sawyer,  150  Va.  399;  Barbour     v.  Johnson,  21 

U.  S.  578;  Va.  Coal  Co.  v.  Kelly,  D.  C.  40. 

354 


CHAP.  VI.]  FRAUDS    UPON    THIRD    PERSONS.  [§  212. 

Lord  Ch.  Justice  Wilmot  said,  "Let  the  hand  receiving  the 
gift  be  ever  so  chaste,  yet  if  it  comes  through  a  polluted  channel, 
the  obligation  of  restitution  will  follow  it."  '  This  principle  of 
course  cannot  prevail  against  a  purchaser  in  good  faith  for  a 
valuable  consideration,  and  without  notice  of  any  fraudulent 
influence. 

§  212.  So  a  contract  intended  to  defraud  third  persons,  who 
are  not  parties  to  it,  will  be  set  aside,  or  a  trust  will  be  declared 
for  such  third  persons.^  Thus,  if  property  is  conveyed  by  a 
debtor  for  the  purpose  of  defrauding  his  creditors,  the  convey- 
ance is  void  at  law,  and  in  some  cases  equity  will  construe  it 
to  create  a  trust  for  the  creditors.^  And  so  if  in  an  arrangement 
and  composition  of  creditors  with  the  debtor,  one  of  them  se- 
cretly obtains  an  extra  advantage  for  executing  the  composi- 
tion deed,  he  will  be  converted  into  a  trustee  by  reason  of  the 
fraud,  and  the  agreement  will  be  null  and  void."*  Again,  a 
transfer  in  fraud  of  a  wife,  it  being  intended  to  prevent  her 
from  obtaining  alimony,  might  raise  a  constructive  trust  in 
favor  of  the  wife.^  In  this  connection  it  must  be  noted  that  on 
the  same  facts  there  is  a  decided  difference  as  to  the  manner  in 

»  Bridgman  v.  Green,  2  Ves.  627;  Wilm.  58,  64;  Luttrell  t'.  Olmius, 
cited  11  Ves.  638;  14  Ves.  290;  Huguenin  v.  Baseley,  id.  289;  Graves  v.  Spier, 
58  Barb.  349;  Newton  v.  Porter,  5  Lans.  417.  But  see  Dixon  i'.  Caldwell, 
15  Ohio,  412. 

»  See  §  171. 

'  Loomia  v.  Lift,  16  Barb.  543;  Jones  v.  Reeder,  22  Ind.  111.  See  1  Story's 
Eq.  Jur.  §§  350-381;  Buck  v.  Voreis,  89  Ind.  116. 

*  Chesterfield  v.  Janssen,  2  Ves.  156;  15  Ves.  52;  Mann  v.  Darlington, 
15  Pen^.  St.  310;  Case  v.  Gerrish,  15  Pick.  50;  Ramsdell  v.  Edgarton,  8 
Met.  227;  Lothrop  v.  King,  8  Cush.  382;  Partridge  v.  Messer,  14  Gray, 
ISO;  Kahn  v.  Gunherts,  9  Ind.  430;  Spooner  v.  Whiston,  8  Moore,  580, 
Mallalieu  v.  Hodgson,  16  Ad.  &  El.  N.  R.  689-715;  Turner  v.  Hoole,  Dowl. 
&  Ry.  N.  P.  27;  Smith  v.  Cuff,  6  M.  &  S.  160;  Horton  t-.  Riley,  11  M.  &  W. 
492;  Alsager  v.  Spalding,  6  Scott,  204;  Arnold  181;  4  Bing.  N.  C.  407; 
Leicester  v.  Rose,  4  East,  380;  Howden  v.  Haight,  11  Ad.  &  El.  1038;  Fawcett 
V.  Gee,  3  Anst.  910;  Breck  v.  Cole,  4  Sandf.  83;  Knight  v.  Hunt,  5  Bing. 
433;  Bliss  v.  Mattheson,  45  N.  Y.  42. 

*  Tyler  v.  Tyler,  25  Brad.  111.  333,  126  111.  525.  [See  also  Nichols  v. 
Nichols,  61  Vt.  426.] 

355 


§  213.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

which  equity  will  treat  persons  standing  in  differing  rela- 
tions to  those  facts.  In  favor  of  the  person  defrauded  a  trust 
will  be  raised  by  law,  but  in  favor  of  the  fraudulent  grantor 
none;  (a)  although  if  there  is  an  express  trust  in  favor  of  the 
grantor,  the  trustee  will  not  be  excused  from  performance  by 
showing  that  the  transaction  was  a  fraud  on  some  third  person.^ 

§  213.  If  a  man  or  woman  on  the  point  of  marriage  privately 
convey  away  his  or  her  property  for  the  purpose  of  depriving 
the  intended  husband  or  wife  of  the  legal  rights  and  benefits 
arising  from  such  marriage,  equity  will  avoid  such  conveyance 
or  compel  the  person  taking  it  to  hold  the  property  in  trust,  or 
subject  to  the  rights  of  the  defrauded  husband  or  wife.^    But 

1  Ibid.;  Fast  v.  McPherson,  98  111.  496.  [  Ownes  v.  Ownes,  23  N.  J.  Eq. 
60.] 

'  Hunt  V.  Mathews,  1  Vem.  408;  England  v.  Downes,  2  Beav.  522; 
Ball  V.  Montgomery,  2  Ves.  Jr.  191;  Strathmore  v.  Bowes,  2  Bro.  Ch.  345; 
2  Cox,  485;  1  Ves.  Jr.  22;  Goddard  v.  Snow,  1  Russ.  485;  Tucker  v.  Andrews, 
13  Maine,  124;  Waller  v.  Armistead,  2  Leigh,  11;  Logan  v.  Simmons,  3  Ired. 
Eq.  487;  Terry  v.  Hopkins,  1  Hill,  Eq.  1;  Duncan's  App.,  43  Pa.  St.  68; 

(a)  Springfield  Homestead  Ass'n  Barber  v.  Barber,  146  Ind.  390; 
V.  Roll,  137  111.  205;  Brown  v.  Brown,  Chantler  v.  Hubbell,  34  Wash.  211. 
66  Conn.  493.  As  a  general  rule  But  a  constructive  or  resulting  trust 
equity  wiU  not  declare  a  trust  in  will  be  declared  in  behalf  of  his 
favor  of  a  grantor  who  needs  to  creditors  to  the  extent  that  the 
allege  his  own  fraudulent  purpose  property  is  needed  for  the  payment 
in  order  to  establish  the  basis  for  of  their  demands.  If,  however,  the 
a  constructive  or  resulting  trust,  debtor  has  other  property  which 
Derry  v.  Fielder,  216  Mo.  177.  See  the  creditors  can  reach  and  apply 
18  Harv.  Law  Rev.  547;  Monahan  to  the  satisfaction  of  their  demands 
V.  Monahan,  77  Vt.  133.  Where  it  has  been  held  that  they  must  ex- 
one  conveys  to  another  or  takes  a  haust  that  first.  Gilbert  v.  Stock- 
conveyance  in  another's  name  upon  man,  81  Wis.  602.  If  the  holder  of 
a  secret  trust  for  the  fraudulent  the  title  chooses  to  carry  out  the 
purpose  of  putting  his  property  secret  trust  voluntarily  notwith- 
beyond  the  reach  of  his  creditors,  standing  his  defence,  the  court  will 
equity  will  give  him  no  assistance  not  prevent  him  from  doing  so,  and 
in  enforcing  the  trust.  Springfield  his  own  creditors  have  no  right  to 
Homestead  Ass'n  v.  Roll,  137  111.  object.  PoUey  v.  Johnson,  52  ICan. 
205;  Moore  v.  Horsley,  156  111.  36;  478;  Yardley  v.  Sibbs,  84  Fed.  531; 
Heinz  v.  White,  105  Ala.  670.    See 

356 


CHAP.  VI.]  CONVEYANCE   BEFORE   MARRIAGE.  [§  213. 

such  conveyance  is  not  void  at  law  unless  there  is  an  actual 
fraud. ^  Nor  will  such  conveyance  be  avoided,  if  made  for  a 
good  consideration;^  or  for  a  valuable  consideration;^  or  with  the 
knowledge  or  concurrence  of  the  other  party,  although  an 
infant;'  and  the  party  alleging  fraud  must  prove  it  to  the  satis- 
faction of  the  court.^  For  the  same  reasons  a  conveyance  by  a 
husband  during  the  pendency  of  a  divorce  suit  on  the  part  of 
his  wnfe,  in  order  to  avoid  the  payment  of  alimony,  will  be 
held  to  be  fraudulent  and  void.^  If  an  intended  husband  has  no 
knowledge  of  the  particular  property  conveyed,  and  the  nego- 
tiations for  the  marriage  have  no  reference  to  that  particular 

Wrigley  v.  Swainson,  3  De  G.  &  Sm.  458;  Manes  v.  Durant,  2  Rich.  Eq.  404; 
McAfee  v.  Ferguson,  9  Mon.  495;  Linker  v.  Smith,  4  Wash.  224;  Raresay 
V.  Joyce,  1  McMull.  Eq.  237;  Wilhams  v.  Carle,  2  Stockt.  Ch.  543;  Lewellin 
V.  Cobbald,  1  Sm.  &  Gif.  376;  Cheshire  v.  Payne,  16  B.  Mon.  618;  Carleton 
V.  Dorset,  2  Vern.  17;  2  Cox,  63;  McDonnell  v.  Hesilridge,  16  Beav.  346; 
Howard  v.  Hooker,  2  Ch.  R.  81;  St.  George  v.  Wake,  1  M.  &  K.  622;  Taylor 
V.  Pugh,  1  Hare,  608;  Ashton  v.  McDougall,  5  Beav.  56;  Griggs  v.  Staples,  2 
De  G.  &  Sm.  572;  Smith  v.  Smith,  2  Halet.  Ch.  515;  Petty  v.  Petty,  4  B. 
Mon.  215;  Belt  v.  Ferguson,  3  Grant,  289.  [  Murray  v.  Murray,  90  Ky.  1 ; 
Beere  v.  Beere,  79  Iowa,  555;  Nichols  v.  Nichols,  61  Vt.  426;  Collins  v.  Col- 
lins, 98  Md.  473.] 

'  Richards  v.  Lewis,  11  C.  B.  1035;  Logan  v.  Simmons,  1  Dev.  &  Bat. 
Law,  13.  [  Murray  v.  Murray,  90  Ky.  1;  Kinne  v.  Webb,  54  Fed.  34,  39; 
Alkire  v.  Alkire,  134  Ind.  350;  Dudley  v.  Dudley,  76  Wis.  567;  Bliss  v.  West, 
58  Hun,  71 ;  Nichols  v.  Nichols,  61  Vt.  426.  But  see  Ferebee  v.  Pritchard,  112 
N.  C.  83.] 

2  De  Manville  v.  Crompton,  1  V.  &  B.  354;  England  v.  Downes,  2  Beav. 
522;  Smith  v.  Smith,  2  Halst.  Ch.  515;  Tucker  v.  Andrews,  13  Me.  124; 
Manes  v.  Durant,  2  Rich.  Eq.  404;  Terry  t'.  Hopkins,  1  Hill,  Eq.  1;  Hunt 
V.  Mathews,  1  Vern.  408;  King  v.  Cotton,  2  P.  Wms.  674;  Mos.  259.  [  But 
see  Nichols  i'.  Nichols,  61  Vt.  426.] 

'  Blanchet  v.  Foster,  2  Ves.  264.  But  if  the  consideration  is  fraudu- 
lently stated  in  the  deed,  it  will  make  the  conveyance  fraudulent.  Lewel- 
lin V.  Cobbald,  1  Sm.  &  Gif.  376. 

*  St.  George  v.  Wake,  1  M.  &  K.  610;  McClure  v.  Miller,  1  Bail.  Eq.  108; 
Knottman  v.  Peyton,  1  Speer's  Eq.  46;  Terry  v.  Hopkins,  1  Hill,  Eq.  1; 
Cheshire  v.  Payne,  16  B.  Mon.  618;  Fletcher  v.  Ashley,  6  Grat.  332;  Slo- 
combe  t-.  Glubb,  2  Bro.  Ch.  545. 

'  St.  George  v.  Wake,  1  M.  &  K.  610;  England  v.  Downes,  2  Beav.  522. 

"  Blenkinsop  v.  Blenkinsop,  1  De  G.,  M.  &  G.  495;  Krupp  v.  SchoU,  10 
Penn.  St.  193.     [  Tyler  v.  Tyler,  126  111.  525.] 

357 


§  213.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

property,  its  conveyance  is  not  fraudulent,  unless  it  was  actu- 
ally intended  as  a  fraud  upon  him,^  and  so  there  must  be  an 
intent  to  defraud  the  individual  who  is  afterwards  married;  for 
if  a  deed  is  made  to  defraud  another  individual  who  is  not  mar- 
ried, but  a  marriage  afterwards  takes  place  with  a  person,  not 
in  contemplation  at  the  time,  there  is  no  fraud. ^  If  no  notice 
of  the  conveyance  is  shown  to  have  been  given,  it  will  be  pre- 
sumed that  no  notice  was  had;^  and  it  is  always  a  question  of 
fact  upon  the  whole  transaction  whether  the  conveyance  is 
fraudulent.^  If,  however,  the  property  is  of  that  character 
that  the  husband  could  obtain  no  right  over  it  by  the  marriage, 
the  conveyance  of  it  by  the  wife  before  marriage  cannot  be  set 
aside.  ^  In  all  ante-nuptial  contracts  there  must  be  the  utmost 
good  faith  between  the  parties,  and  a  grossly  disproportionate 
settlement  may  be  evidence  of  a  fraudulent  concealment.®  (a) 

»  Thomas  v.  Williams,  Mos.  177;  DeManville  v.  Crompton,  1  V.  &  B. 
354;  St.  George  v.  Wake,  1  M.  &  K.  622;  and  see  Goddard  v.  Snow,  1  Russ. 
485. 

2  Strathmore  v.  Bowes,  1  Ves.  Jr.  22;  2  Bro.  Ch.  345;  2  Cox  28;  6  Bro. 
P.  C.  427;  1  Lead.  Gas.  Eq.  325;  England  v.  Dowries,  2  Beav.  522;  Cheshire 
t;.  Payne,  16  B.  Mon.  618;  Wilson  v.  Daniel,  13  B.  Mon.  351. 

3  Cole  V.  O'Neill,  3  Md.  174;  Wrigley  v.  Swainson,  3  De  G.  &  Sm.  458. 
'  Ibid. 

°  Ibid.  Whether  the  deed  on  record  is  notice  or  not,  is  a  question.  Cole 
V.  O'NeUl,  3  Md.  174. 

'  Kline's  Est.,  64  Penn.  St.  122. 

(a)  A  wife's  expectancy  of  a  share  fraudulent  intent  must  be  made 
of  her  husband's  property  after  clear  to  the  court.  See  Nichols  v. 
death  which  the  law  gives  her  in  Nichols,  61  Vt.  426. 
addition  to  her  right  of  dower  will  It  has  been  held  that  a  pur- 
be  protected  against  transfers  by  chaser's  taking  title  in  the  name  of 
the  husband  for  the  purpose  of  de-  a  third  person  for  the  purpose  of 
priving  her  of  her  share.  Nichols  preventing  his  wife  from  acquiring 
V.  Nichols,  61  Vt.  426;  BrowneU  dower  rights,  is  fraudulent.  Deny 
V.  Briggs,  173  Mass.  529.  But  see  v.  Fielder,  216  Mo.  177.  But  the 
Lines  v.  Lines,  142  Pa.  St.  149;  better  opinion  is  that  Furh  a  pur- 
Seaman  V.  Harmon,  192  Mass.  5;  pose  does  not  render  tho  transaction 
Kelley  v.  Snow,  185  Mass.  288.  fraudulent,  since  the  wife  had  no 
The  mere  transfer  without  consid-  dower  rights  in  the  purchase  money 
eration,  however,  is  not  enough ;  the  and    the    husband    was    under    no 

358 


CHAP.  VI.]  ILLEGAL    AJUD    IMMORAL    CONTRACTS.  [§  214. 

§  214.  There  are  certain  purposes  for  which  neither  express 
law  nor  public  policy  will  allow  parties  to  contract;  thus,  the 
law  will  not  permit  contracts  for  the  procuring  of  marriages/ 
or  of  public  offices/  or  of  legislation/  or  of  illicit  cohabitation.* 
If,  therefore,  such  contracts  are  entered  into,  equit\'  will  enjoin 
their  performance.^  And  the  party  creating  the  interest,  al- 
though in  pari  delicto,  may  apply  for  an  injunction.  In  such 
cases,  the  person  applying  must  return  any  benefit  that  he  may 
have  received.^  Such  contracts  are  equally  void  at  law,  and 
if  the  parties  are  in  pari  delicto,  the  law  will  leave  them  where 
it  finds  them.  If  one  party  has  advanced  money  upon  an 
immoral  or  illegal  contract,  the  law  will  give  him  no  aid  to 
recover  it  back.  But  equity  will  sometimes  fasten  a  trust  upon 
the  conscience  of  the  party  who  has  received  money  or  prop- 
erty under  such  contracts,  and  compel  him  to  repay  or  reconvey 
it,^  especially  if  the  illegal  purpose  fails.* 

»  Drury  v.  Hook,  1  Vem.  412;  Cole  t-.  Gibson,  1  Yes.  507;  Debenham 
V.  Ox,  id.  277;  Smith  v.  Aykwell,  3  Atk.  566;  Smith  v.  Bruning,  2  Vem.  392; 
Williamson  v.  Gihon,  2  Sch.  &  L.  357;  Roberts  v.  Roberts,  3  P.  Wms.  76. 

2  Hartwell  v.  Hartwell,  4  Ves.  811;  Morris  v.  McCulloch,  Amb.  432;  2 
Eden,  190;  Writhingham  i;.  Burgoyne,  2  Anst.  900;  Harrington  t'.  Duchattel, 
1  Bro.  Ch.  124. 

»  Robinson  v.  Cox,  9  Mod.  263;  Walker  t;.  Perkins,  3  Burr.  1568;  1  Bla 
517;  Rex  v.  Inhabitants  of  Northwingfield,  1  B.  &  Ad.  912;  Winebrinner 
V.  Weiseger,  3  Monr.  35;  Travinger  v.  McBumey,  5  Cow.  253;  Cusack  v. 
White,  3  Const.  Ct.  R.  2S4;  Fuller  v.  Dame,  18  Pick.  472;  Pingry  v.  Wash- 
burn, 1  Aiken,  264;  Grolick  v.  Ward,  5  Halst.  87;  Wood  r.  McCann,  6  Dana, 
366;  CUppinger  v.  Hipbaugh,  3  W.  &  S.  315;  Harris  v.  Roop,  10  Barb.  489; 
Sedgwick  v.  Stanton,  4  Kern.  289;  Frost  v.  Belmont,  6  .\llen,  152. 

*  Marshall  v.  Baltimore  &  Ohio  Railw.,  16  How.  153. 

*  Robinson  j;.  Gee,  1  Ves.  251;  Grayr.  Mathias,  5  Ves.  286;  Franco  v. 
Bolton,  3  Ves.  370. 

*  St.  John  V.  St.  John,  11  Ves.  535;  Reyncll  v.  Sprye,  1  De  G.,  M.  &  G. 
660. 

^  Smith  V.  Bruning,  2  Vem.  302;  Morris  v.  McCulloch,  Amb.  432;  Ownee 
V.  Ownes,  23  N.  J.  Eq.  60. 

«  Symes  v.  Hughes,  L.  R.  9  Eq.  475. 

obligation  to  her  to  purchase  land.      Nichols  v.  Park,  79  N.  Y.  S.  .547; 
Seaman  r.   Harmon,   192   Mass.   5;     78  App.  Div.  95. 
Phelps  V.   Phelps,    143   X.   Y.    197; 

359 


§  215.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

§  215.  If  at  a  sale  of  an  estate  of  a  debtor  upon  execution, 
any  one  announces,  for  the  purpose  of  preventing  competition, 
that  he  is  bidding  or  purchasing  for  the  debtor;  ^  or  if,  upon  the 
sale  of  the  property  of  a  deceased  person,  a  bidder  announces 
that  he  is  purchasing  for  the  benefit  of  children  or  heirs,  or  if 
at  a  mortgagee's  sale  a  person  announces  that  he  is  purchasing 
for  the  mortgagor,  and  thus  prevents  competition,  the  pur- 
chaser will  be  held  to  be  a  trustee  for  the  benefit  of  the  parties 
interested  in  the  property.-  So  if  any  one  professing  to  act  for 
another  purchases  for  himself,  he  will  be  held  as  a  trustee.^ 
But  in  such  cases  there  must  be  some  proof  of  fraud  and  deceit 
practised  by  the  purchaser;  the  mere  breach  of  a  parol  agree- 
ment will  not  create  a  constructive  trust  in  such  cases ;  ^  and  if 
the  conduct  of  the  purchaser  is  not  fraudulent  and  produces 
no  injury,  a  trust  is  not  raised.^  If  the  parties  for  whom  the 
purchaser  pretends  to  buy  have  no  interest  in  the  property, 
they  cannot  establish  a  trust.^ 

1  Kinard  v.  Hiers,  2  Rich.  Eq.  423;  Lloyd  v.  Currin,  .3  Humph.  462; 
Seichrist's  App.,  66  Penn.  St.  237;  Miller  v.  An  tie,  2  Bush,  407;  Brannia 
V.  Brannin,  18  N.  J.  Ch.  282;  Crutcher  v.  Hord,  4  Bush,  360;  Roach  v.  Hud- 
son, 8  Bush,  410;  Brown  v.  Lynch,  1  Paige,  147;  Tankard  v.  Tankard,  84 
N.  C.  286. 

2  Brown  v.  Dysinger,  1  Rawle,  408;  Kellum  v.  Smith,  9  Casey,  158; 
Sheriff  v.  Neal,  6  Watts,  534;  Sharp  v.  Long,  4  Casey,  443;  Morey  v.  Her- 
rick,  6  Harris,  123;  Williard  v.  WiUiard,  6  P.  F.  Smith,  119;  Robertson  v. 
Robertson,  9  Watts,  32;  Plumer  v.  Reed,  2  Wright,  46;  Beegle  v.  Wentz, 
73  Penn.  St.  369;  Kisler  v.  Kisler,  2  Watts,  323;  McCaskey  v.  Graff,  11 
Harris,  321;  Abbey  v.  Dewey,  1  Casey,  114;  McRarey  v.  Huff,  32  Ga.  681; 
Ryan  v.  Dox,  34  N.  Y.  307;  Mackay  v.  Martin,  26  Tex.  225;  Dennis  v. 
McCagg,  32  111.  429;  Cook  v.  Cook,  69  Penn.  St.  443;  Jenckes  v.  Cook,  9 
R.  I.  520.  So,  as  to  a  party  holding  bona  fide  a  claim  upon  the  property, 
whether  valid  or  not.  Wolford  v.  Hemington,  86  Penn.  St.  39.  [  Woodfin 
V.  Marks,  104  Tenn.  512.] 

2  Rothwell  V.  Dawea,  2  Black  (U.  S.)  613;  O'Neil  v.  Hamilton,  44  Penn. 
St.  18;  Coe  v.  Bradley,  49  Maine,  388;  Baylis  v.  Baxter,  22  Col.  175;  Adams 
V.  Bradley,  12  Mich.  346;  Drennen  v.  Walker,  21  Ark.  539. 

*  Minott  V.  Mitchell,  30  Ind.  288.    [  See  §  206,  note.] 

'  Taylor  v.  Boardman,  24  Mich.  287. 

«  Rogers  v.  Simmons,  58  111.  76;  Walter  v.  Klock,  55  111.  82.  [  See  §  206, 
note.] 

360 


CHAP.  VI.]  PURCHASES    FROM    TRUSTEES.  [§  217. 

§  21G.  Again,  if  a  testator  make  a  devise,  or  a  grantor  a  con- 
veyance, upon  a  secret  trust  in  fraud  of  the  law,  or  for  a  purpose 
forbidden  by  law,  or  contrary  to  public  policy,  those  interested 
may  bring  a  bill  alleging  the  secret  trust,  and  the  fraud  upon 
the  law,  and  the  persons  to  whom  the  devise  or  conveyance  was 
made  must  answer,  notwithstanding  the  statute  of  frauds.'  If 
such  fraudulent  trust  appear  by  the  answer,^  or  by  any  clear 
and  explicit  proof  in  opposition  to  the  answer,^  a  trust  will  be 
declared  and  enforced  in  favor  of  those  interested  in  the  estate, 
or  in  the  event  of  the  failure  of  the  illegal  trust.  In  all  cases 
of  actual  fraud  parol  evidence  is  admissible,  otherwise  a  fraud 
put  in  writing  would  always  escape.'' 

§  217.  Another  large  class  of  constructive  trusts  arises  from 
purchases  or  conveyances  from  trustees,  or  other  persons  hold- 
ing a  fiduciar}^  relation  to  property.  It  is  a  universal  rule,  that 
if  a  man  purchases  property  of  a  trustee,  with  notice  of  the 
trust,  he  shall  be  charged  with  the  same  trust,  in  respect  to  the 
property,  as  the  trustee  from  whom  he  purchased.^    And  even 

J  Mucklcston  v.  Brown,  6  Ves.  52;  Podmore  v.  Gunning,  7  Sim.  644; 
Chamberlain  v.  Agar,  2  V.  &  B.  259;  Strickland  v.  Aldridge,  9  Ves.  513; 
Edwards  v.  Pike,  1  Eden,  267;  Walgrave  i-.  Tebbs,  2  K.  &  J.  313;  Rob- 
inson V.  King,  6  Ga.  550. 

2  Cottingham  v.  Fletcher,  2  Atk.  155;  Bozon  v.  Statham,  1  Eden,  508; 
Bishop  V.  Talbot,  cited  6  Ves.  60;  Adlington  v.  Cann,  3  Atk.  141;  Paine  v. 
Hall,  18  Ves.  473;  1  Eden,  515,  n.  (a). 

'  How  V.  Camp,  Walk.  Ch.  427;  Strickland  t-.  Aldridge,  9  Ves.  520; 
Pring  V.  Pring,  2  Vern.  99. 

*  Ibid.    [  Supra,  §  212,  note.] 

s  Le  Neve  i-.  Le  Neve,  Amb.  436;  3  Atk.  646;  1  Ves.  64;  2  Lead.  Cas. 
Eq.  23  and  notes;  Merry  v.  Abney,  1  Ch.  Cas.  38;  Potter  v.  Sanders,  6  Hare, 
1;  Kennedy  v.  Daly,  1  Sch.  &  L.  355;  Crofton  v.  Ormsby,  2  Sch.  &  L.  5S3; 
Ferras  v.  Cherry,  2  Vern.  384;  Daniels  v.  Davidson,  16  Ves.  249;  Brooke 
V.  Bulkeley,  2  Ves.  498;  Jennings  v.  Moore,  2  Vern.  609;  2  Bro.  P.  C.  278; 
Birch  V.  Ellames,  2  Anst.  427;  Mackreth  v.  Symmons,  19  Ves.  349;  Grant 
V.  Mills,  2  V.  &  B.  306;  Saunders  v.  Dehew,  2  Vern.  271;  Mansell  v.  Man- 
sell,  2  P.  Wms.  681 ;  Wigg  v.  Wigg,  1  Atk.  382;  Dunbar  r.  Tredennick,  2  B.  & 
B.  319;  Pawlett  v.  Att.  Gen.,  Hardr.  465;  Burgess  v.  Wheate,  1  Eden,  195; 
Adair  v.  Shaw,  1  Sch.  &  L.  262;  Mead  v.  Orrery,  3  Atk.  238;  Bovey  v.  Smith, 
1  Vern.  149;  Phayre  v.  Peree,  3  Dow,  129;  Wormley  v.  Wormley,  8  Wheat. 

361 


§  217.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

if  he  pays  a  valuable  consideration,  with  notice  of  the  equitable 
rights  of  a  third  person,  he  shall  hold  the  property  subject  to 
the  equitable  interests  of  such  person.^  (a)  Of  course,  a  mere 
volunteer,  or  person  who  takes  the  property  without  paying  a 
valuable  consideration,  will  hold  it  charged  with  all  the  trusts 
to  which  it  is  subject,  whether  he  have  notice  or  not ;  for  in  such 
case  no  wrong  or  pecuniary  loss  can  fall  upon  him,  in  compelling 
him  to  execute  the  trust  to  which  the  property  that  came  to  him 
without  consideration  was  subject.  (6)     Such  purchases  from 

421;  Oliver  v.  Piatt,  3  How.  333;  Caldwell  v.  Camngton,  9  Peters,  86; 
Wright  V.  Dame,  22  Pick.  55;  Clarke  v.  Hackerthom,  3  Yeates,  269;  Peebles 
V.  Reading,  8  S.  &  R.  495;  Reed  v.  Dickey,  2  Watts,  495;  Hood  v.  Fannestock, 
1  Barr.  470;  Wilkins  v.  Anderson,  1  Jones,  399;  Denn  v.  McKnight,  6  Halst. 
385;  Murray  v.  Ballou,  1  Johns.  Ch.  566;  Bailey  v.  Wilson,  1  Dev.  &  Bat. 
182;  Massey  v.  Mcllwaine,  2  Hill,  Eq.  426;  Benzien  v.  Lenoir,  1  Car.  L.  R. 
504;  Pugh  V.  Bell,  1  J.  J.  Marsh,  403;  Liggett  v.  WaU,  2  A.  K.  Marsh.  149; 
Truesdell  v.  Calloway,  6  Miss.  605;  Suydam  v.  Martin,  Wright,  384;  Winged 
)).  Lefebury,  1  Eq.  Ca.  Abr.  32;  Taylor  v.  Stibbert,  2  Ves.  Jr.  437;  Case  v. 
James,  29  Beav.  512;  Cary  v.  Eyre,  1  De  G.,  J.  &  S.  149;  Jones  v.  Shaddock, 
41  Ala.  362;  Ryan  v.  Doyle,  31  Iowa,  53;  Smith  v.  Walter,  49  Mo.  250; 
James  v.  Cowing,  17  Hun  (N.  Y.),  256.  [  Indiana,  etc.,  R.  Co.  v.  Swannell, 
157  111.  616;  Bailey  v.  Winn,  101  Mo.  649;  Davis  v.  Settle,  43  W.  Va,  17; 
Handy  v.  Rice,  98  Me.  504;  Pope  v.  Prince,  105  Va.  209;  Murphy  v.  Farmer's 
etc.  Bank,  131  Cal.  115.] 
'  Ibid. 

(a)  Of  course  this  does  not  apply  288;  or  to  the  property  into  which 
when  the  trustee  has  authority  the  proceeds  can  be  traced.  Valen- 
under  the  trust  to  sell  the  property  tine  v.  Ricardt,  126  N.  Y.  272. 
free  from  the  trust,  and  the  pur-  See  also  Am.  Sugar  Refining  Co. 
chaser  has  no  notice  of  an  intended  v.  Francher,  145  N.  Y.  552;  Con- 
misapplication  of  the  proceeds.  In-  verse  v.  Sickles,  44  N.  Y.  S.  1080; 
fra,  §  800  and  note.  Anderson  v.   Foster,    112   Ga.   270. 

When  the  sale  is  in  breach  of  But  after  having  made  his  election 
trust  and  to  a  purchaser  who  has  by  suing  the  trustee  and  taking 
notice,  the  cestui  or  those  represent-  judgment  against  him  for  the  value 
ing  his  interest  may  elect  either  to  of  the  property  \\Tong;fully  sold, 
charge  him  with  the  same  trust  or  he  has  no  right  to  foUew  the  trust 
to  confirm  the  sale  and  have  the  property  into  the  hands  of  the  pur- 
trust  attached  to  the  proceeds,  In  chaser.  Carter  v.  Gibson,  61  Neb. 
re  Champion,  [1893]  1  Ch.  101;  207;  Libby  v.  Frost,  98  Me.  288. 
Indiana,  etc.,  R.  Co.  v.  Swannell,  (6)  So  equity  has  jurisdiction  to 
157  111.  616;  Libby  v.  Frost,  98  Me.  decree  an  account  of  the  rents  and 

362 


CHAP.  VI.]       PURCHASES  FROM  TRUSTEES.  [§  217. 

trustees,  whether  for  value  or  not,  are  fraudulent,  and  equity 
will  follow  the  property  and  fasten  the  original  trust  upon  it 
for  the  security  of  the  cestui  que  trust,  or  other  person  holding 
an  equitable  interest.^  The  rule  applies  not  only  to  express 
trusts,  or  those  expressly  declared  by  written  instruments,  but 
it  applies  to  constructive  trusts,  or  those  trusts  that  arise  from 
fraud.  Thus,  if  a  party  procures  a  conveyance  of  property  from 
another  by  fraud,  he  shall  be  held  to  be  a  constructive  trustee; 
and  if  he  sells  such  property  to  a  third  person  who  has  full 
knowledge  or  notice  of  the  fraud,  such  third  person  will  be 
equally  held  as  a  trustee.^  After  a  purchase  is  once  made  from 
a  trustee  with  notice  of  the  trust,  the  person  taking  the  title 
cannot  bar  the  interest  of  the  cestui  que  trust  by  buying  in  other 
interests,  or  by  levying  a  fine  or  suffering  a  recovery,  obtaining 
a  judgment,  or  by  procuring  the  assignment  to  himself  of 
outstanding  mortgages  or  terms.^  Having  once  taken  with 
notice  of  the  trust,  he  is  a  trustee  in  law,  and  a  trustee  cannot 
defeat  the  interests  of  his  cestui  que  trust ;  on  the  contrary,  all 
the  interest  that  the  trustee,  or  constructive  trustee,  shall  thus 
buy  in,  will  inure  to  the  benefit  of  the  title  for  the  cestui  que 
trust.* 

'  Ibid.;  Lyford  v.  Thurston,  16  N.  H.  399. 

*  Pyer.  George,  1  P.  Wms.  128;  Saunders  v.  Dehew,  2  Vem.  271;  Man- 
sell  V.  Mansell,  2  P.  Wms.  681 ;  Smith  v.  Bowen,  35  N.  Y.  83;  Lyons  v.  Boden- 
hamer,  7  Kans.  455;  Sadler's  Appeal,  87  Penn.  St.  154. 

^  Moloney  v.  Keman,  2  Dr.  &  W.  31 ;  Brook  v.  Bulkeley,  2  Ves.  498. 

*  Bovey  v.  Smith,  1  Vem.  145;  Kennedy  v.  Daly,  1  Sch.  &  L.  37.  [  Supra, 
§  195,  note.] 

profits  of  lands  against  a  disseizor,  An  involuntary'  trust  is  enforce- 
when  the  land  owners  are  infants  or  able  against  persons  who  come  into 
persons  non  compos  mentis.  Robin-  possession  of  the  property  only  to 
son  V.  Burritt,  66  Miss.  356.  But  an  the  same  extent,  in  the  same  man- 
innocent  tenant,  entering  under  the  ner,  and  with  like  force  and  effect  m 
disseizor,  and  paying  rent  to  him  against  the  original  trustee.  Gray 
without  notice  of  such  owner's  title,  v.  Farmers'  Exchange  Bank,  105 
will  not  be  required  to  again  pay  Cal.  60,  64. 
the  rent  to  the  owner.  Boylan  v. 
Deinzer,  45  N.  J.  Eq.  485. 

363 


§  218.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

§  218.  Of  course,  the  opposite  proposition  is  also  true,  that 
a  purchaser  for  a  valuable  consideration  without  actual  or 
constructive  notice  of  the  trust,  holds  the  property  discharged 
of  the  interest  of  the  cestui  que  trust.  It  is  thus  stated  on  great 
authority :  "  A  purchaser,  bona  fide  without  notice  of  any  defect 
in  his  title  at  the  time  he  made  the  purchase,  may  buy  in  a 
statute  or  mortgage,  or  any  other  incumbrance,  and  if  he  can 
defend  himself  at  law  by  any  such  incumbrance  bought  in, 
his  adversary  shall  never  be  aided  in  a  court  of  equity  for 
setting  aside  such  incumbrance,  for  equity  will  not  disarm  a 
purchaser,  but  assist  him;  and  precedents  of  this  nature  are 
very  ancient  and  numerous;  viz.,  where  the  court  hath  refused 
to  give  any  assistance  against  a  purchaser,  either  to  an  heir,  or 
to  a  widow,  or  to  the  fatherless,  or  to  creditors,  or  even  to  one 
purchaser  against  another."  And  it  may  be  added  that  nothing 
is  clearer  than  that  a  purchaser  for  valuable  consideration  with- 
out notice  of  a  prior  equitable  right,  obtaining  the  legal  estate 
at  the  time  of  his  purchase,  is  entitled  to  priority  in  equity  as 
well  as  at  law,  according  to  the  well-known  maxim  that  where 
equities  are  equal  the  law  shall  prevail }    But  w^hile  a  purchaser 

1  Bassett  v.  Nosworthy,  Ca.  t.  Finch,  102;  2  Lead.  Cas.  Eq.  1  &  notes; 
Jerrard  v.  Saunders,  2  Ves.  Jr.  457;  Goleborn  v.  Alcock,  2  Sim.  552;  San- 
ders V.  Deligne,  Freem.  123;  Fagg's  Case,  1  Vem.  52;  1  Ch.  Cas.  68;  Har- 
court  V.  Knowel,  2  Vern.  159;  Siddon  v.  Chamells,  Bunb.  298;  Jones  v. 
Bowles,  3  M.  &  K.  581;  Willoughby  v.  Willoughby,  1  T.  R.  763;  Blake  v. 
Hungerford,  Pr.  Ch.  158;  Charlton  v.  Low,  3  P.  Wms.  328;  Ex  parte  Knott, 
15  Ves.  609;  Shine  v.  Gough,  1  B.  &  B.  436;  Bowen  v.  Evans,  1  Jon.  &  La. 
264;  Boone  v.  Chiles,  10  Pet.  177;  Watson  v.  Le  Roy,  6  Barb.  485;  Walwyn 
V.  Lee,  9  Ves.  24;  Varick  v.  Briggs,  6  Paige,  325;  Demarest  v.  Wynkoop,  3 
Johns.  Ch.  147;  Dan  v.  McKnight,  6  Halst.  385;  Howell  v.  Ashmore,  1 
Stockt.  82;  Heilner  v.  Imbrie,  6  S.  &  R.  401;  Mundine  v.  Pitts,  14  Ala.  84; 
Tomkins  v.  Powell,  6  Leigh,  576;  Woodruff  v.  Cook,  1  Gill  &  J.  270;  Whit- 
tick  V.  Kane,  id.  202;  High  v.  Batte,  10  Yerg.  335;  Jones  v.  ZoUicoffer,  2 
Taylor,  214;  Owings  v.  Mason,  2  A.  K.  Marsh.  384;  Halstead  v.  Bank  of 
Kentucky,  4  J.  J.  Marsh.  554;  BHght  v.  Banks,  6  Mon.  198;  Hughson  v. 
MandeviUe,  4  Des.  87;  Goodtitle  v.  Cummings,  8  Blackf.  179;  Maywood 
V.  Lubcock,  1  Bail.  Eq.  382;  Brown  v.  Budd,  2  Cart.  442;  Fletcher  v.  Peck, 
6  Cranch,  36;  Alexander  v.  Pendleton,  8  Cranch,  462;  Vattier  v.  Hinds,  7 
Pet.  252;  Dana  v.  Newhall,  13  Mass.  498;  Connecticut  v.  Bradish,  14  Mass. 
296;  Trull  v.  Bigelow,  16  Mass.  406;  Boynton  v.  Rees,  8  Pick.  29;  Gallatian 

364 


CHAP.  VI.]  SAFEGUARDS    FOR    PURCHASERS.  [§  219. 

for  value  without  notice  may  lay  hold  upon  any  plank  to  save 
himself,  he  cannot,  after  notice  of  the  trust,  take  any  convey- 
ajices  from  the  trustee  of  outstanding  legal  interests;  for  that 
is  a  breach  of  the  trust,  and  he  cannot  commit  a  breach  of  the 
trust  to  protect  himself.'  But  a  purchase  of  an  equitable  inter- 
est only,  although  for  a  valuable  consideration  and  without 
notice,  cannot  prevail  against  a  legal  title.  In  law  the  legal 
title  must  always  prevail,  and  in  equity  the  legal  title  will 
prevail  if  the  equities  are  equal. ^ 

§  219.  This  protection  of  a  bona  fide  purchaser  for  value 
without  notice  is  clear  and  certain,  but  it  is  hedged  about  with 
great  care.  It  is  said  to  be  a  shield  to  iwotect,  and  not  a  sword  to 
attack.  It  is  surrounded  with  restrictions,  so  that  it  may  not 
become  a  cloak  for  fraud.  The  defendant  in  a  suit  in  equity 
must  clearly  and  unequivocally  swear  in  his  answer  that  he 
is  a  purchaser  for  value  without  notice,^  and  he  must  set  forth 

V.  Erwin,  Hopk.  48;  8  Cow.  36;  Bumpus  v.  Platner,  1  Johns.  Ch.  213;  Grif- 
fith V.  Griffith,  9  Paige,  315;  Mott  v.  Clark,  9  Barr,  399;  Brackett  v.  Miller, 
4  W.  &  S.  102;  Filby  v.  Miller,  1  Casey,  264;  Rutgers  v.  Kingsland,  3  Halst. 
Ch.  178,  658;  Holmes  v.  Stout,  3  Green,  Ch.  492;  City  Council  v.  Paige, 
Spear,  Ch.  159;  Lacy  v.  Wilson,  4  Munf.  412;  Curtis  v.  Lanier,  6  id.  42; 
Dixon  V.  Caldwell,  15  Ohio  St.  412;  Dillaye  v.  Commerical  Bank,  51  N.  Y. 
345;  Carter  v.  Carter,  3  K.  &  J.  639;  Sugd.  V.  &  P.  470;  Colesbury  v.  Dart, 
58  Ala.  573;  Hamilton  v.  Mound  City  Mut.  Life  Ins.  Co.,  3  Tenn.  Ch.  124. 
[  Home  Bank  v.  Peoria  Trotting  Soc,  206  111.  9.] 

^  Saunders  v.  Dehew,  2  Vern.  271;  Freem.  123;  Allen  v.  Knight,  5  Hare, 
272;  Terrett  v.  Crombie,  6  Lans.  82. 

"^  Snelgrove  v.  Snelgrove,  4  Des.  274;  Daniel  v.  Hollingshead,  16  Ga.  196; 
Larrow  v.  Beam,  10  Ohio,  148;  Jones  v.  Zollicoffer,  2  Taylor,  214;  Brown 
V.  Wood,  6  Rich.  Eq.  155;  Blake  v.  Heyward,  1  Bail.  Eq.  208;  Shirras  v. 
Caig,  7  Cranch,  48;  Jones  v.  Jones,  8  Sim.  633;  Pensonneau  v.  Bleakley,  14 
111.  15;  Boone  v.  Chiles,  10  Pet.  177;  Kramer  v.  Arthurs,  7  Barr,  165;  Wailes 
V.  Cooper,  24  Miss.  208;  Sergeant  v.  Ingersoll,  7  Barr,  340;  3  Harris,  343; 
Flagg  V.  Mann,  2  Sumn.  486,  556;  Cottrell  v.  Hughes,  15  C.  B.  532;  Vatticr 
V.  Hinde,  7  Pet.  252;  Parsons  v.  Jury,  1  Yerg.  296;  GalUon  v.  McCav^lin,  1 
Blackf .  91 ;  Maries  v.  Cooper,  22  Miss.  208.  [  Urpman  r.  Lowther  Oil  Co.. 
53  W.  Va.  501,  513;  Shropshire,  etc.,  Co.  v.  Queen,  7  H.  L.  496.  1  Ames' 
Cases  on  Trusts  (2d  ed.)  305,  note.] 

»  Sugd.  V.  &  P.  507;  Marshall  v.  Frank,  8  Pr.  Ch.  480;  1  Anst.  14;  Blacket 
V.  Langlands,  Sel.  Gas.  Ch.  51;  GUb.  58. 

3G5 


§  219.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

all  the  particulars  of  the  purchase,  and  the  title  or  pretended 
title  of  the  person  from  whom  he  purchased.^  He  must  show 
an  actual  conveyance  and  not  merely  an  agreement  for  a  con- 
veyance;^ and  it  must  be  shown  that  the  consideration-money 
named  in  the  deed  was  paid  in  good  faith.  It  is  not  enough  that 
the  consideration  was  secured  to  be  paid;  nor  is  a  recital  of  pay- 
ment in  the  deed  sufficient:  there  must  be  an  actual  payment.* 
Then  he  must  also  make  an  explicit  denial  of  notice  of  the  title 
which  is  attempted  to  be  set  up.  A  denial  of  knowledge  of 
the  particular  person  who  might  assert  such  title  is  not  suffi- 
cient;* notice  must  be  positively  and  affirmatively  denied,  and 
not  evasively  or  inferentially.^  If  particular  instances  or  cir- 
cumstances of  notice  or  of  fraud  are  alleged,  there  must  be 
clear,  special,  and  particular  denials  of  each  and  every  circum- 
stance.® These  stringent  rules  are  necessary  for  the  protection 
of  the  equitable  interests  of  one  person,  where  the  legal  title 
is  in  the  hands  of  another.^ 

1  Walwyn  v.  Lee,  9  Ves.  Jr.  26;  Story  v.  Winsor,  3  P.  Wms.  279;  Head 
V.  Egerton,  1  Vem.  246;  Trevanion  v.  Morse,  3  Ves.  32,  226;  Amb.  421; 
Jackson  v.  Rowe,  4  Russ.  514;  Lanesborough  v.  Kilmaine,  2  Moll.  403; 
Hughes  V.  Garth,  Amb.  421;  Page  v.  Lever,  2  Ves.  Jr.  450;  Dobson  v.  Lead- 
beater,  13  Ves.  230. 

'  Head  v.  Egerton,  1  P.  Wms.  281 ;  Brandlyn  v.  Ord,  1  Atk.  571. 

'  Millard's  Case,  Freem.  43;  WagstafF  v.  Read,  2  Ch.  Cas.  156;  More  v. 
Mayhow,  1  id.  34;  2  Freem.  175;  Day  v.  Arundel,  Hard.  510;  Hardingham 
V.  Nichols,  3  Atk.  304;  Maitland  v.  Wilson,  id.  814;  Moloney  v.  Kernan,  2 
Dr.  &  War.  31.  But  see  Parker  v.  Crittenden,  37  Conn.  148.  [  Condit  v. 
Bigalow,  64  N.  J.  Eq.  504,  511.] 

*  Kelsal  V.  Bennett,  1  Atk.  522;  Brompton  v.  Barker,  cited  2  Vem.  159, 
is  not  law. 

"  3  P.  Wms.  244,  n.  (f);  Bran  v.  Marlborough,  2  P.  Wms.  492  (6  Res.); 
Hughes  V.  Gamer,  2  Y.  &  Col.  Exch.  328. 

•  Pennington  v.  Beechey,  2  S.  &  S.  282  ;  Anon.  2  Ch.  Cas.  161 ; 
Price  V.  Price,  1  Vem.  185;  Hardman  v.  Ellames,  5  Sim.  650;  2  M.  &  K. 
732. 

^  Alexander  v.  Pendleton,  8  Cranch,  462;  Hunter  v.  Simrall,  5  Litt.  62; 
Boone  v.  Chiles,  10  Pet.  177;  Bush  v.  Bush,  3  Strob.  Eq.  131;  Blight  v.  Bank, 
6  Mon.  698;  Halstead  v.  Bank  of  Kentucky,  4  J.  J.  Marsh.  554;  Moore  v. 
Qay,  7  Ala.  142;  Pillow  v.  Shannon,  3  Yerg.  308;  Nantz  v.  McPherson,  7 
Munf.  599;  Dillard  v.  Crocker,  1  Spear,  Eq.  20;  Vattier  v.  Hinde,  7  Pet. 
252;  Jackson  v.  Rowe,  2  S.  &  S.  472;  Jones  v.  Powles,  3  M.  &  K.  581. 

366 


CHAP.  VI.]  NOTICE.  [§  221. 

§  220.  These  leading  propositions  are  simple  and  plain 
enough,  but  difficulties  frequently  arise  as  to  what  is  a  valua- 
ble consideration,  and  whether  a  purchaser  had  notice  of  the 
equitable  estate,  and  when  and  how  he  obtained  it.  It  is  well 
established  that  a  conveyance,  to  be  good  against  the  equitable 
interest  of  a  cestui  que  trust,  must  be  for  a  valuable  considera- 
tion, and  that  a  conveyance  for  a  good  consideration,  as  for 
love  and  affection,  is  not  sufficient.^  But  if  the  consideration 
is  valuable,  it  need  not  be  adequate:  mere  inadequacy  of  con- 
sideration will  not  defeat  a  purchase  for  a  valuable  consideration 
without  notice;  but  gross  inadequacy  of  a  valuable  considera- 
tion would  be  evidence  affecting  the  good  faith  of  the  transac- 
tion.^ Marriage  is  a  valuable  consideration  for  a  conveyance; 
but  if  a  conveyance  after  marriage  is  made  in  pursuance  of  an 
agreement  before  marriage,  it  must  be  made  clearly  to  appear.' 
The  general  definition  of  a  valuable  consideration  embraces  not 
only  some  valuable  thing  or  property  given  or  transferred  to 
another,  but  also  some  loss  of  property  or  right,  or  the  for- 
bearing of  some  legal  right  or  remedy.^ 

§  221.  In  order  that  one  may  claim  protection  as  a  bona  fide 
purchaser,  the  money  must  have  been  actually  paid  and  the 
conveyance  taken  before  notice  is  received  of  the  trust,  (a)    If 

•  Upshaw  V.  Hargrove,  6  Sm.  &  M.  292;  Frost  v.  Beekman,  1  Johns.  Ch. 
288;  Patten  v.  Moore,  32  N.  H.  382;  Boone  v.  Baines,  23  Miss.  136;  Everts 
i;.  Agnes,  4  Wis.  343;  Swan  v.  Ligan,  1  McCord,  Ch.  232. 

2  Moore  v.  Mayhow,  1  Ch.  Cas.  34;  Wagstaff  v.  Read,  2  Ch.  Cas.  156; 
Bullock  V.  Sadlier,  Arab.  764;  Mildmay  i;.  Mildmay,  cited  Amb.  767. 
I  Mackay  v.  Gabel,  117  Fed.  873.] 

"  Harding  v.  Hardrett,  t.  Finch,  9;  Lord  Keeper  v.  Wyld,  1  Vern.  139. 

■•  It  is  impossible  to  pursue  this  subject  in  all  its  details  and  distinctions 
in  a  work  of  this  character  without  exceeding  all  reasonable  Umits.  The 
cases  will  be  found  most  industriously  collected  in  the  notes  to  Bassett  v. 
Nosworthy,  2  Lead.  Cas.  Eq.  103-109,  and  the  distinctions  and  quaUfica- 
tions  are  fully  discussed.     [  See  infra,  §  SlSc] 

(a)  Halloran  v.  Holmes,  13  N.  D.     Driving  Park,  63  Conn.   142,   147; 
411;  Lain  v.  Morton,  63  S.  W.  286     1  Ames'  Cases  on  Trusts  (2d  ed.), 
(Ky.  1901);  Trice  v.  Comstock,  121    287. 
Fed.  620;  Hayden  v.  Charter  Oak 

367 


§  221.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

the  money  is  secured,  but  not  paid,  notice  of  the  trust  will  con- 
vert the  purchaser  into  a  trustee,^  and  so  if  the  money  is  paid, 
but  the  conveyance  is  not  executed,  the  weight  of  authority  is 
that  notice  of  the  trust  will  destroy  the  protection  of  the  pur- 
chaser.^ It  is  held  that  the  money  must  be  wholly  paid  before 
notice.^  This  rule  proceeds  upon  the  ground,  that,  as  the  pur- 
chaser is  taking  the  transfer  of  a  title  that  defeats  the  equitable 
right  of  a  third  person,  he  shall  be  held  to  take  such  title  sub- 
ject to  all  the  equities  that  attach  to  it  at  the  time  it  passes.  If, 
therefore,  he  pays  no  money  at  the  time  the  title  passes,  he 
has  no  equity  to  set  up  against  the  equity  of  a  third  person,  and 
if  he  has  notice  before  he  pays  the  money,  he  pays  in  his  own 
wrong.  And  so,  if  he  has  paid  his  money,  but  has  not  yet  taken 
the  title  when  he  receives  notice,  he  takes  the  title  subject  to 
all  the  equities  that  attach  to  it  when  the  conveyance  is  actu- 
ally made  to  him,  as  he  then  has  a  right  to  refuse  the  conveyance 
and  to  demand  back  his  money.*  In  Pennsylvania,  however, 
it  is  established  that  part-payment  of  the  purchase-money 
before  notice  will  give  the  purchaser  an  equity  pro  tanto}    So, 

1  Tourville  v.  Naish,  3  P.  Wms.  387;  Story  v.  Winsor,  2  Atk.  630;  More 
V.  Mayhow,  1  Ch.  Cas.  34;  Jones  v.  Stanley,  2  Eq.  Cas.  Ab.  685;  High  v. 
Batte,  10  Yerg.  555;  Christie  v.  Bishop,  1  Barb.  Ch.  105;  Murray  v.  Ballou, 
1  Johns.  Ch.  566;  Jackson  v.  Cadwell,  1  Cow.  622;  Jewett  v.  Palmer,  7 
Cow.  65,  265;  Heatley  v.  Finster,  2  Johns.  Ch.  19;  Harris  v.  Norton,  16  Barb. 
264;  Patten  v.  Moore,  32  N.  H.  382;  McBee  v.  Loftes,  1  Strob.  Eq.  90; 
Hunter  v.  Simrall,  5  Litt.  62;  Palmer  v.  WilUams,  24  Mich.  333;  Blanchard 
V.  Tyler,  12  Mich.  339;  Stone  v.  Welling,  14  Mich.  514;  Dixon  r.Hill,  5  Mich. 
404;  Warner  v.  Whittaker,  6  Mich.  133;  Thomas  v.  Stone,  Walk.  Ch.  117; 
Lewis  V.  Phillips,  17  Ind.  108;  Rhodes  v.  Green,  36  Ind.  10;  Dugan  v  Vattier, 
3  Blackf.  245;  Perkinson  v.  Hanna,  7  Blackf.  400.  But  see  Parker  v.  Crit- 
tenden, 37  Conn.  148;  2  Dart,  V.  &  P.  760. 

2  Wigg  V.  Wigg,  1  Atk.  384;  2  Sugd.  V.  &  P.  274.  [Ames'  Cases  on 
Trusts  (2d  ed.)  288.] 

*  Wormley  v.  Wormley,  8  Wheat.  421;  Wood  v.  Mann,  1  Sumn.  506. 

*  Warner  v.  Winslow,  1  Sandf.  Ch.  430;  Vattier  v.  Hinde,  7  Pet.  252; 
Bush  t^.Bush,  3  Strob.  Eq.  131 ;  Kyle  v.  Tait,  6  Grat.  44;  Doswell  v.  Buchanan, 
3  Leigh,  362;  Dillard  v.  Crocker,  1  Spear,  Eq.  20;  Duncan  v.  Johnson,  2 
Eng.  190;  Cook  v.  Bronaugh,  8  Eng.  190;  Frost  v.  Beekman,  1  Johns.  Ch. 
288;  Cole  v.  Scott,  2  Wash.  141;  Abell  v.  Howe,  43  Vt.  403. 

*  Youst  V.  Martin,  3  Serg.  &  R.  423;  Lewis  v.  Bradford,  10  Watts,  67; 

368 


CHAP.  VI.]  NOTICE.  [§  222. 

if  a  purchaser  without  notice  make  improvements  on  the  land, 
not  having  paid  the  purchase-money  in  full,  he  will  have  an 
equitable  lien  on  the  land  for  the  amount  of  his  expenditures, 
although  he  has  no  defence  to  a  bill  to  enforce  the  rights  of  the 
cestui  que  trust}  This  is  in  analogy  to  the  statutes  that  give  a 
defendant  in  a  real  action  a  claim  for  improvements  upon  an 
estate,  which  he  has  made  in  ignorance  of  the  title  against 
him. 

§  222.  The  notice  of  the  trust  may  be  either  to  the  pur- 
chaser himself,  or  to  his  agent,  counsel,  or  attorney.  The  gen- 
eral rule  is  that  notice  to  an  agent  is  notice  to  his  principal.^ 
The  notice,  if  to  an  agent,  must  be  to  an  agent  for  the  purpose  of 
the  purchase,  and  the  notice  must  be  to  him  while  engaged  in 
the  transaction,"^  for  the  reason  that  notice  to  agents  generally, 
without  reference  to  the  particular  business  in  hand,  is  not 

Bellas  V.  McCarthy,  10  Watts,  13;  Juvenal  v.  Jackson,  2  Harris,  519;  Uhrich 
V.  Beck,  1  Harris,  631;  4  Harris,  499;  Paul  v.  Fulton,  25  Mo.  156. 

'  Boggs  V.  Varner,  6  Watts  &  S.  469;  Farmers'  Loan  Co.  v.  Maltby,  8 
Paige,  563;  Frost  v.  Beekman,  1  Johns.  Ch.  288;  Doswell  v.  Buchanan, 
3  Leigh,  361;  Flagg  v.  Mann,  2  Sumn.  486;  Everts  v.  Agnes,  4  Wis. 
343. 

2  Hovey  v.  Blanchard,  13  N.  H.  145;  Aster  v.  Wells,  4  Wheat.  466; 
Bank  of  U.  S.  v.  Davis,  2  Hill,  451;  Griffith  v.  Griffith,  9  Paige,  315;  Jack- 
son V.  Winslow,  9  Cow.  13;  Jackson  v.  Sharp,  9  Johns.  163;  Jackson  v.  Leek, 
19  Wend.  339;  Westerwelt  v.  Hoff,  2  Sandf .  98;  Barnes  v.  McChristie,  3  Penn. 
67;  Blair  v.  Owles,  1  Munf.  38;  Brotherton  v.  Hutt,  2  Vern.  574;  Newstead 
V.  Searles,  1  Atk.  265;  Le  Neve  v.  Le  Neve,  3  Atk.  646;  1  Ves.  64;  2  Lead. 
Cas.  Eq.  165,  notes;  Tunstall  t;.  Trappes,  3Sim.301;  Maddox  r.  Maddox,  1 
Ves.  61;  Ashley  v.  Bailley,  2  Ves.  368;  Bracken  v.  Miller,  4  Watta  &  S. 
108;  Espin  v.  Pemberton,  3  De  G.  &  J.  547.  [  Chapman  v.  Hughes,  134 
Cal.  641,  658.] 

*  Howard  Ins.  Co.  v.  Halsey,  4  Seld.  271;  Bracken  v.  Miller,  4  Watts 
&  S.  102;  Bank  of  U.  S.  v.  Davis,  2  Hill,  451;  Hood  v.  Fahnestock,  S  Watts, 
489;  Winchester  v.  Baltimore  R.  R.  Co.,  4  Md.  231;  Preston  t-.  Tubbin,  1 
Vern.  286;  Mountford  v.  Scott,  3  Madd.  34;  Warwick  v.  Warwick,  3  Atk. 
291;  Ashley  v.  Bailley,  2  Ves.  368;  Worsley  v.  Scarborough,  3  Atk.  392; 
Tylee  v.  Webb,  6  Beav.  552;  14  Beav.  14;  Finch  v.  Shaw,  19  Beav.  500; 
5  H.  L.  Cas.  905;  Fuller  t;.  Bennett,  2  Hare,  394.  [  Brookhouse  t'.  Union 
Publishing  Co.,  73  N.  H.  368;  Mack  v.  Mcintosh,  181  lU.  633.]  But  see 
Abel!  V.  Howe,  43  Vt.  403. 

VOL.  I.  —  24  369 


§  222.]  CONSTRUCTIVE   TRUSTS,  [CHAP.  VI. 

binding  upon  the  principal.^  Notice  to  a  husband  is  not  notice 
to  a  wife,  unless  he  is  her  agent,  and  is  engaged  upon  the  busi- 
ness when  he  receives  the  notice.^  Upon  the  same  principle, 
knowledge  by  an  executor  before  the  death  of  his  testator  is 
not  notice  to  him  after  his  appointment  as  executor.^  It  has 
been  held  in  some  cases,  that  the  notice  to  the  principal,  to 
convert  him  into  a  trustee,  must  be  given  to  him  during  the 
progress  of  the  transaction,  as  he  might  have  known  the  facts 
long  before  and  forgotten  them/  If  the  first  purchaser  from 
the  trustee  take  the  property,  bona  fide  for  value  and  without 
notice,  all  purchasers  from  him  will  take  the  property  dis- 
charged of  the  equitable  claims,  although  they  have  notice  of 
them  at  the  time  they  purchase  of  the  first  purchaser,  and  such 
notice  to  them  cannot  convert  them  into  trustees.^  But  if  the 
property  comes  back  into  the  hands  of  the  original  trustee,  or 
into  the  hands  of  any  one  affected  with  the  guilt  of  the  original 
sale,  he  will  be  a  trustee  for  the  defrauded  party,  although  the 
property  may  have  passed  through  several  innocent  hands.® 


1  Ibid.;  U.  S.  Insurance  Co.  v.  Schriver,  3  Md.  Ch.  381;  Fulton  Bank 
V.  New  York  Coal  Co.,|4  Paige,  127;  Bank  v.  Payne,  25  Conn.  444;  North 
River  Bank  v.  Aymar,  3  Hill,  362;  Henry  v.  Morgan,  2  Benn.  497;  Ross 
V.  Horton,  2  Cushman,  591. 

2  Snyder  v.  Sponable,  1  Hill,  567;  7  Hill,  427. 
»  Gold  V.  Death,  Cro.  Jac.  381;  Hob.  92. 

*  Hamilton  v.  Royse,  2  Sch.  &  Lef.  377;  2  Sugd.  V.  &  P.  277;  Henry 
V.  Morgan,  3  Binn.  497;  Boggs  v.  Vamer,  6  Watts  &  S.  469;  Bracken  v. 
Miller,  4  Watts  &  S.  111. 

6  Harrison  v.  Forth,  Pr.  Ch.  51;  Sweet  v.  Southcote,  2  Bro.  Ch.  66; 
Brandlyn  v.  Ord,  1  Atk.  571;  Lowther  v.  Charlton,  2  Atk.  242;  Lacy  v. 
Wilson,  4  Munf.  313;  Fletcher  v.  Peck,  6  Cranch,  87;  Boone  v.  Chiles,  10 
Pet.  187;  Truluck  v.  Peoples,  3  Kelly,  446;  Griffith  v.  Griffith,  9  Paige,  315; 
Boynton  v.  Reese,  8  Pick.  329;  Mott  v.  Clarke,  9  Barr,  399;  Trull  v.  Bigelow, 
16  Mass.  406;  Parker  v.  Crittenden^  37  Conn.  145;  Terrett  v.  Crombie,  6 
Lansing,  82.  [  Enghsh  v.  Lindley,  194  lU.  181;  Amett's  Committee  v. 
Owens,  65  S.  W.  151  (Ky.  1901);  Ford  v.  Axelson,  74  Neb.  92;  Long  v. 
Fields,  31  Tex.  Civ.  App.  241;  1  Ames'  Cases  on  Trusts  (2d  ed.)  286.] 

®  Bovey  v.  Smith,  1  Vem.  149;  Schutt  v.  Large,  6  Barb.  373;  Lawrence 
V.  Stratton,  6  Cush.  163;  Church  v.  Ruland^  64  Penn.  St.  441.  [  WilUams  v. 
Williams,  118  Mich.  477;  Bourquin  v.  Bourquin,  120  Ga.  115;  1  Ames' 
Cases  on  Trusts  (2d  ed.)  287.] 

370 


CHAP.  VI.]  CONSTRUCTIVE    NOTICE.  [§  223. 

§  223.  Notice  to  the  purchaser  may  be  either  actual  or  con- 
structive. Actual  notice  is  a  knowledge  of  the  facts  of  the 
trust  brought  home  to  the  purchaser,  or  a  knowledge  of  such 
facts  as  should  lead  him  to  a  knowledge  of  the  actual  facts  of 
the  case.^  Constructive  notice  is  a  legal  presumption  of  notice 
unless  controlled,  and  in  most  cases  it  is  not  susceptible  of  re- 
buttal, even  by  evidence  that  in  fact  there  was  no  actual  knowl- 
edge.2  Thus,  by  statutes  of  the  several  States  the  recording  of 
a  deed  is  made  notice  to  all  subsequent  purchasers,  though  it 
frequently  happens  that  purchasers  have  no  actual  knowledge 
from  the  record;  but  that  does  not  rebut  the  fact  of  notice,  for 
the  reason  that  it  is  their  duty  to  examine  the  records;  they 
are  therefore  conclusively  affected  with  notice  of  all  of  the 
record  which  is  legally  made,  and  which  it  was  their  duty  to 
examine.^  (a)  Lis  pendens  is  constructive  notice;  that  is,  a 
suit  pending  in  the  public  courts,  concerning  the  title  of  the 
property  purchased,  is  constructive  notice  to  the  purchaser.''  (b) 

>  Mayor  v.  Williams,  6  Md.  235. 

=  Rogers  v.  Jones,  8  N.  H.  264;  Plumb  v.  Fluitt,  2  Anst.  432;  Griffith  v. 
Griffith,  1  Hoff.  153;  Farnsworth  v.  Child,  4  Mass.  637. 

'  Maul  V.  Reder,  59  Penn.  St.  167;  Smith  t^.  Burgess,  133  Mass.  511,  514. 

*  Drew  V.  Norbury,  9  Ir.  Eq.  176.  Upon  the  filing  of  a  bill  in  equity, 
and  before  the  service  of  the  subpoena,  a  suit  is  lis  pendens.  Ibid.  See 
Leitch  V.  Wells,  48  N.  Y.  591. 

(a)  But  they  do  not  have  con-  206    Mo.    373,    394;     Ladnier     r. 

structive  notice  of  recorded  instru-  Stewart,  38  So.  748  (Miss.  1905). 
ments  which  do  not  come  within  the  (6)  Briefly    stated,    the   doctrine 

chain  of  title,  Claiborne  v.  Holland,  of  lis  pendens  is  that  a  purchaser 

88    Va.    1046;    or    of    instruments  of    property   during    the    pendency 

which,    though    recorded,    are    not  of  a  suit  in  relation  to  it  takes  his 

legally  upon   the    records.      Roths-  title  subject  to  any  judgment  which 

cliild  i;.  Daugher,  85  Tex.  332;  Bow-  may  be  rendered  with  reference  to 

den  V.  Parrish,  86  Va.  67;  Wasson  the  property  in  the  suit  then  pend- 

V.    Connor,    54    Miss.    351.      Such  ing.    Norris  v.  He,  152  111.  190;  Alli- 

irregularity    in    the    recording    of  son  v.  Drake,  145  111.  500.    See  also 

instruments  containing  notice  of  the  Burleaon    v.    McDermott,    57    Ark. 

trust  would  of  course  not  avail  a  229;  DufT  v.  McDonough,  155  Pa. 

purchaser  who   had   actual   knowl-  St.   10.     It  is  sometimes  said  that 

edge  of  their  contents  or  knowledge  the  suit  is  constructive  notice  of  the 

of  their  existence.      Gross  v.  Watts,  adverse   claims   against    the    prop- 

371 


§223. 


CONSTRUCTIVE   TRUSTS. 


[chap.  VI. 


Actual  possession  by  the  cestui  que  trust,  or  some  person  other 
than  the  vendor,  is  constructive  notice  to  the  purchaser  that 
there  is  some  claim,  title,  or  possession  of  the  property  adverse 
to  his  vendor;  and  this  fact  should  put  him  upon  his  inquiry. 


erty.  State  v.  Wichita  County,  59 
Kan.  512;  Jewett  v.  Iowa  Land  Co., 
64  Minn.  531,  540;  Jaycoxi;.  Smith, 
45  N.  Y.  S.  299.  Although  the 
effect  upon  a  purchaser  'pendente 
lite  is  usually  much  the  same  as  if  this 
were  so,  the  doctrine  seems  to  be 
based  not  upon  the  theory  of  con- 
structive notice,  but  upon  the  legal 
necessity  of  preserving  the  res  of 
the  litigation  for  the  judgment 
of  the  court  and  of  subjecting  it  to 
the  judgment  without  pausing  to 
bring  in  and  pass  upon  the  rights 
of  those  who  have  piuchased  while 
the  suit  is  pending.  Alhson  v. 
Drake,  145  111.  500;  Stout  v.  Phihppi 
M'f'g  Co.,  41  W.  Va.  339;  Osborn 
V.  Glasscock,  39  W.  Va.  749,  760; 
Wigram  v.  Buckley,  [1894]  3  Ch. 
483.  If  the  owner  were  able  to  con- 
vey to  a  purchaser  for  value  without 
notice,  he  would  in  many  cases  have 
the  power  to  defeat  the  judgment 
of  the  court. 

The  effect  of  the  doctrine  is  not 
precisely  the  same  as  constructive 
notice  of  the  claim  sued  upon,  for 
if  the  suit  is  dismissed,  a  judgment 
in  a  subsequent  suit  upon  the  same 
grounds  will  not  bind  a  bona  fide 
purchaser  without  notice,  who  ac- 
quired his  interest  during  the  pen- 
dency of  the  first  suit.  AlUson  v. 
Drake,  145  111.  500;  Pipe  v.  Jordan, 
22  Colo.  392,  47  Cent.  L.  J.  408; 
Rector  v.  Fitzgerald,  59  Fed.  808. 
The  harshness  of  the  rule  upon 
bona  fide  purchasers  for  value  with- 
out notice  of  the  litigation  has  caused 

372 


the  legislatures  of  England  and  of 
many  of  the  States  to  restrict  the 
doctrine  by  statute,  so  that  lis 
pendens  does  not  affect  bona  fide 
purchasers  for  value  unless  notice 
of  it  is  recorded,  usually  at  the 
registry  of  deeds  in  the  county  where 
the  land  Ues.  Digest  of  Stats,  of  Ark. 
(1904),  §§  5149-5154;  Mass.  R.  L. 
(1902),  ch.  134,  §  12;  Compiled  Laws 
of  Mich.  (1897),  §  441^42;  Miss. 
Code  (1906),  §§  3147-3148;  Mont. 
Code  Civ.Proc.  (1907),  §  6517;  Baker 
V.  Bartlett,  18  Mont.  446;  N.  Y. 
Code  (1895),  §§  1670-1672;  Pa.  P.  L. 
1856,532, §  2;  2  Purdon's  Dig.  (13th 
ed.)  p.  1033,  §  28;  Va.  Code  (1904), 
§  3566;  Code  of  W.  Va.  (1899),  ch. 
139,  §  13;  2  &  3  Vict.  c.  11,  s.  7. 
See  also  statutes  of  other  States. 
Mcllwrath  v.  Hollander,  73  Mo. 
105.  The  statutes  as  a  rule  deal 
with  lis  pendens  only  when  the 
action  concerns  real  estate,  leaving 
the  common-law  rule  as  to  person- 
alty unchanged.  But  many  juris- 
dictions have  held  that  the  doctrine 
never  applied  to  other  property 
than  real  estate  or  chattel  interests 
in  real  estate.  Wigram  v.  Buckley, 
[1894]  3  Ch.  483.  Others  hold  that 
the  doctrine  applies  to  personalty 
other  than  money  and  negotiable 
instruments.  Stout  v.  Phihppi 
M'f'g  Co.,  41  W.  Va.  339;  Osborn 
V.  Glasscock,  39  W.  Va.  749,  760, 
and  cases  cited;  Norris  v.  He,  152 
111.  190.  See  also  State  v.  Wichita 
County,  59  Kan.  512. 


CHAP.  VI.] 


CONSTRUCTIVE    NOTICE. 


[§  223. 


for  if  he  had  inquired  he  would  have  discovered  the  exact  title 
and  the  equitable  claims  upon  it;  he  therefore  has  constructive 
notice,  (o)    There  are  many  other  facts  and  circumstances  from 


(a)  For  recent  cases  holding  that 
possession  of  land  by  other  than  the 
grantor  at  the  time  of  a  sale  or  other 
transfer  is  notice  to  the  purchaser 
of   equities   and    unrecorded   rights 
of  the  possessor,  see  Rankin  M'f'gCo. 
V.  Bishop,  137  Ala.  271;    Scheuer  v. 
Kelley,  121   Ala.  323;  Shifif  &  Son 
V.  Andress,  40  So.  824  (Ala.  1906) 
Beattie  v.  Crewdson,  124  Cal.  577 
Allen    V.     Moore,     30    Colo.    307 
Bridger    v.    Exchange    Bank,     126 
Ga.  821  ;  Austin  v.  So.  Home  Ass'n, 
122  Ga.  439;  Baldwin  v.  Sherwood, 
117  Ga.  827;  Georgia,  etc.,  Ass'n  v. 
Faison,    114     Ga.    655;    Joiner    v. 
Duncan,   174  111.  252,  257;  O'Neill 
V.  Wilcox,  115  Iowa,  15;  Crooks  v. 
Jenkins,  124  Iowa,  317;  Townsend 
V.   Blanchard,   117  Iowa,  36;  Gray 
V.  Zellmer,  66  Kan.  514;  Bryant  v. 
Main,  77   S.   W.   680   (Ky.    1903); 
Holmes  t;.  Deppert,  122  Mich.  275; 
Niles  V.  Cooper,  98  Minn.  39;  Ober- 
lender   v.    Butcher,    67    Neb.    410; 
Salvage  v.  Haydock,  68  N.  H.  484; 
English  V.  Rainear,  55  A.  41  (N.  J. 
Ch.  1903);  Essex  County  Bank  v. 
Harrison,  57  N.  J.  Eq.  91,  96;  Fla- 
herty y.  Kayser,  48  A.  565  (N.  J 
1901);  Cornell  v.  Maltby,  165  N.  Y 
557;  CoUins  v.  Davis,  132  N.  C.  106 
Ambrose  v.  Huntington,  34  Or.  484 
Collum  V.  Sanger  Bros.,  98  Tex.  162 
Ramirez    v.    Smith,    94    Tex.    184 
Sowles  I'.  Butler,  71  Vt.  271,  278 
Allen  V.  Gates,  73  Vt.  222;  Peterson 
V.  Philadelphia  M't'g  Co.,  33  Wash. 
464,  473;  Martin  v.  Thomas,  56  W. 
Va.  220.     See  also  Cunningham  v. 
Pattee,  99  Mass.  248,  252.     For  a 
good  collection  of  cases  upon  this 


and  related  points  see  note  to 
Crooks  V.  Jenkins,  (124  Iowa,  317)  in 
104  Am.  St.  Rep.  331. 

^\^len  the  possessor  is  a  mere 
tenant  of  one  claiming  adversely  to 
the  vendor,  the  former's  possession 
is  sufficient  notice  to  put  the  pur- 
chaser upon  inquiry  and  to  charge 
him  with  all  equities  and  unrecorded 
rights,  not  only  of  the  tenant  but 
also  of  the  landlord,  which  reason- 
able inquiry  would  have  revealed 
to  him.  Austin  v.  Southern  Home 
Ass'n,  122  Ga.  439;  Walker  v.  Neil, 
117  Ga.  733,  745;  O'Neill  v.  WU- 
cox,  115  Iowa,  15;  Townsend  v. 
Blanchard,  117  Iowa,  36;  Crooks 
V.  Jenkins,  124  Iowa,  317;  Thomp- 
son V.  Borg,  90  Minn.  209;  Niles  v. 
Cooper,  98  Minn.  39;  Essex  County 
National  Bank  v.  Harrison,  57  N.  J. 
Eq.  91,  96;  Randall  v.  Lingwall,  43 
Or.  383;  Ambrose  v.  Huntington, 
34  Or.  484;  Collum  v.  Sanger,  98 
Tex.  162.  But  see  Hunt  i'.  Luck, 
[1901]lCh.  45.  The  better  opinion 
seems  to  be  that  failure  to  inquire 
does  not  charge  the  purchaser  with 
constructive  notice  of  the  adverse 
claims  except  in  cases  where  and  to 
the  extent  that  reasonable  inquiry 
would  have  informed  him  of  such 
claims.  Cornell  v.  Maltby,  165 
N.  Y.  557;  Hunt  v.  Luck,  [1901] 
1  Ch.  45. 

To  have  the  effect  of  notice, 
possession  must  be  shown  either 
to  have  been  actuallj'  brought  to  the 
attention  of  the  purchaser  or  to  have 
been  "  open,  visible,  exclusive  and 
unambiguous,  not  liable  to  be  mis- 
construed or  misunderstood."    Ran- 

373 


§223. 


CONSTRUCTIVE   TRUSTS. 


[chap.  VI. 


Avhich  courts  will  presume  that  a  purchaser  had  notice  of  the 
equities  attached  to  an  estate.^     If  in  any  way  a  person  pur- 

'  It  is  impossible  to  state  all  the  distinctions  that  have  been  established 
upon  this  fruitful  source  of  Utigation.  The  principles  are  most  ably  stated 
in  the  notes  to  Le  Neve  v.  Le  Neve,  2  Lead.  Cas.  Eq.  23;  Calhoun  v.  Bur- 
nett, 40  Miss.  599;  Pilcher  v.  RawUns,  L.  R.  11  Eq.  53;  Carter  v.  Carter,  3 
K.  &  J.  687;  Farris  v.  Dunn,  7  Bush,  276. 


kin  M'f'g  Co.  v.  Bishop,  137  Ala. 
271.  Thus  it  has  been  held  that 
a  grantor  remaining  in  possession 
after  giving  his  deed  may  be  pre- 
sumed by  a  subsequent  purchaser 
to  be  merely  a  tenant  by  sufferance 
of  his  gi-antee.  Hockman  i;.  Thuma, 
68  Kan.  519;  Smith  v.  PhilHps, 
9  Okla.  297.  And  it  has  been  held 
that  possession  by  a  co-tenant  gives 
no  notice  of  a  claim  to  the  whole 
title.  Martin  v.  Thomas,  56  W.  Va. 
220.  See  contra,  CoUum  v.  Sanger, 
98  Tex.  162. 

The  rule  that  possession  by  an- 
other than  the  grantor  is  notice  of 
possible  rights  and  equities,  is  the 
most  frequent  illustration  of  the 
general  rule  that  equity  will  not 
give  one  the  protection  accorded  to  a 
bona  fide  purchaser  for  value  if  his 
lack  of  knowledge  of  the  equitable 
or  unrecorded  interests  of  others  in 
the  property  is  due  to  his  own  failure 
to  take  notice  of  obvious  facts  which 
would  put  a  reasonably  prudent 
and  honest  man  upon  inquiry.  In 
Kirsch  v.  Tozier,  143  N.  Y.  397,  the 
general  rule  was  stated  as  follows: 
"  A  purchaser  is  not  required  to  use 
the  utmost  circumspection.  He  is 
bound  to  act  as  an  ordinarily  pru- 
dent and  careful  man  would  do 
under  the  circumstances.  He  can- 
not act  in  contravention  to  the  dic- 
tates of  reasonable  prudence  or 
refuse  to  inquire  when  the  propriety 
of   inquiring  is  naturally  suggested 

374 


by  circumstances  known  to  liim." 
See  also  Albany  Exch.  Bank  v. 
Brass,  59  App.  Div.  (N.  Y.)  370. 
And  in  Anderson  v.  Blood.  152  N.  Y. 
285,  it  was  said:  "  If  the  facts  within 
the  knowledge  of  the  purchaser  are 
of  such  a  nature  as  in  reason  to  put 
him  on  inquiry  and  to  excite  the 
suspicion  of  an  ordinarily  prudent 
person  and  he  fails  to  make  some 
investigation,  he  will  be  chargeable 
with  that  knowledge  which  a  reason- 
able inquiry  as  suggested  by  the 
facts,  would  have  revealed."  See 
Cahill  V.  Seitz,  86  N.  Y.  S.  1009,  93 
App.  Div.  105.  The  rule  in  England 
is  thus  stated  by  Lindley,  M.  R., 
in  Oliver  v.  Hinton,  [  1899]  2  Ch. 
264,  274:  "To  deprive  a  purchaser 
for  value  without  notice  of  a  prior 
incumbrance  of  the  protection  of  the 
legal  estate,  it  is  not,  in  my  opinion, 
essential  that  he  should  have  been 
guilty  of  fraud;  it  is  sufficient  that 
he  haa  been  guilty  of  such  gross 
negUgence  as  would  render  it  un- 
just to  deprive  the  prior  incum- 
brancer of  his  priority."  See  also 
Williams  t).  Smith,  128  Ga.  306;  Lyon 
V.  Gombert,  63  Neb.  630;  Condit  v. 
Maxwell,  142  Mo.  266;  Interstate 
Inv.  Co.  V.  Bailey,  93  S.  W.  578  (Ky. 
1906);  Lain  v.  Morton,  63  S.  W. 
286  (Ky.  1901);  Swasey  v.  Emerson, 
168  Mass.  118;  Kenney  v.  Altvater, 
77  Pa.  St.  34;  Trinidad  v.  Mil- 
waukee, etc.,  Co.,  63  Fed.  883. 
Recital  in  bonds  that  they  are 


CHAP.  VI.]  ADMINISTRATOR.  [§  224. 

chases,  with  what  the  law  construes  to  be  full  notice  that  another 
has  a  legal  or  equitable  title  to  the  property,  or  that  he  has 
been  deprived  of  his  interest  by  accident,  mistake,  or  fraud, 
he  will  be  held  as  a  trustee.^ 

§  224.  The  same  general  principles  affect  the  sales  of  prop- 
erty by  executors  or  administrators.  Executors  can  deal  with 
real  estate  only  as  they  are  empowered  to  do  so  by  the  will  of 
testators.  Purchasers  must  therefore  look  to  the  will  for  the 
power  of  the  executor.  If  they  purchase  in  good  faith  from  an 
executor  with  power  to  sell,  they  will  take  a  good  title;  but  if 
they  make  a  fraudulent  or  collusive  purchase  from  an  executor 
with  full  power  to  sell,  they  still  hold  the  estate  upon  the  same 
trusts  to  which  it  was  subject  in  the  hands  of  the  executor.  If 
there  are  no  powers  to  sell  real  estate  given  to  executors  in  the 
will,  they  have  no  authority  to  deal  with  it,  unless  it  is  wanted 
to  pay  debts  or  legacies,  in  which  case  both  executors  and  ad- 
ministrators must  obtain  an  order  or  license  from  the  court  of 
probate  to  sell.  In  such  case  the  purchaser  must  see  that  the 
order  of  the  court  was  regularly  obtained,  and  that  it  is  prop- 
erly complied  with.  Any  fraud  or  collusion  on  the  part  of  the 
executor  or  administrator,  in  procuring  the  decree  of  the  court 
or  in  the  conduct  of  the  sale,  would  convert  the  purchaser  into 
a  trustee  for  heirs-at-law  or  other  persons  interested.-  So,  if 
an  executor  or  administrator  purchases  indirectly  of  himself 
through  a  third  person,  and  takes  a  deed  to  himself  through 
such  third  person,  the  sale  will  be  void,  or  the  estate  will  be 
held  in  trust  by  such  administrator  or  executor  for  the  heirs- 
at-law  or  other  persons  interested. 


I  Forbes  v.  Hall,  34  III.  159. 

»  Brush  V.  Ware,  15  Pet.  93;  Brock  «;.  Phillips,  2  Waah.  68. 

secured  by  deed  of  trust  does  not  to  be  enforced  at  law  only    after 

charge  a  bona  fide  purchaser  with  no-  an  attempt  to  collect  them  through 

tice  of  a  provision  in  the  trust  deed  the  trustees.  Guilford  i'.  Minneapo- 

to  the  effect  that   the  bonds  were  lis,  etc.,  R.  Co.,  48  Minn.  560. 

375 


§  225.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

§  225.  An  executor  or  administrator  generally  has  full  power 
over  the  personal  estate  under  his  charge.  Therefore  he  may- 
sell  the  same  and  give  a  good  title  to  a  purchaser.^  This  is  the 
rule  at  common  law,  and  it  prevails  in  all  States  where  it  is  not 
changed  by  statute.  In  some  States  there  are  statutes  that 
direct  executors  or  administrators  to  sell  the  personal  estate 
of  the  deceased  at  public  auction,  or  in  such  manner  as  the 
court  having  jurisdiction  over  the  administration  shall  order. 
In  such  States,  purchasers  must  see  to  it  that  executors  and 
administrators,  in  making  sales,  pursue  the  course  marked  out 
for  them  by  the  statutes  or  by  the  orders  of  the  court,  or  they 
will  take  no  title.^  In  all  sales  by  executors  and  administrators 
good  faith  is  indispensable.  If  therefore  a  purchaser  knows,  or 
has  notice,  that  a  sale  by  an  administrator  is  fraudulent  or 
collusive,  or  is  a  devastavit,  or  is  for  the  purpose  of  misapplica- 
tion of  the  assets,  his  title  will  not  be  allowed  to  prevail  against 
the  beneficial  interests  of  creditors,  specific  or  residuary  lega- 
tees, or  next  of  kin  or  heirs.^  Equity  will  examine  the  transac- 
tion; and  if  circumstances  appear  sufficient  to  put  the  purchaser 

^  Field  i;.  Schieflfelin,  7  Johns.  Ch.  155;  Rayner  v.  Pearsall,  3  Johns. 
Ch.  578;  Hertell  v.  Bogert,  9  Paige,  57;  Yerger  v.  Jones,  16  How.  37;  Miles 
i;.  Durnford,  2  Sim.  (n.  s.)  234;  Tyrrell  v.  Morris,  1  Dev.  &  Batt.  559; 
Hunter  v.  Lawrence,  11  Grat.  117;  Bond  v.  Ziegler,  1  Kelly,  324;  Crane  v. 
Drake,  2  Vern.  616;  Ewer  v.  Corbett,  2  P.  Wms.  148;  Newland  v.  Champion, 
1  Ves.  105;  Jacomb  v.  Harwood,  2  Ves.  268;  Elmhe  v.  McAulay,  3  Bro.  Ch. 
626;  Utterson  v.  Maire,  4  Bro.  Ch.  270;  2  Ves.  Jr.  95;  Scott  t'.  Tyler,  2  Dick. 
725;  Bonney  v.  Ridgard,  1  Cox,  145;  Dickson  v.  Lockyer,  4  Ves.  42;  Doran 
V.  Simpson,  id.  665;  Hill  v.  Simpson,  7  Ves.  152. 

2  Fambro  v.  Gantt,  12  Ala.  305;  Bond  v.  Barksdale,  4  Des.  526;  Bond 
V.  Ziegler,  1  Kelly,  324;  Baines  v.  McGee,  1  Sm.  &  M.  208. 

»  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Wylson  v.  Moore,  1  M.  &  K.  337; 
Cole  V.  Miles,  10  Hare,  179;  Saxon  v.  Barksdale,  4  Des.  526;  McNair's  App., 
4  Rawle,  155;  Johnson  v.  Johnson,  2  Hill,  Eq.  277;  Mead  v.  Orrery,  3  Atk. 
235;  McLeod  v.  Drummond,  14  Ves.  361;  17  Ves.  169;  Field  j;.  Schieffehn, 
7  Johns.  Ch.  155;  Colt  v.  Lasnier,  9  Cow.  320;  Sacia  v.  Berthoud,  17  Barb. 
15;  WilUamson  v.  Branch  Bank,  7  Ala.  906;  Swink  v.  Snodgra^ss,  17  Ala. 
653;  Garnett  v.  Macon,  6  Call.  361;  Dodson  v.  Simpson,  2  Rand.  294; 
Graff  V.  Castleman,  5  Rand.  204;  Parker  v.  Gilhan,  10  Yerg.  294;  WilUamson 
i;.  Morton,  2  Md.  Ch.  94;  Lowry  «;.  Farmers'  Bank,  10  P.  L.  J.  3;  Am.  L.  J. 
(n.  s.)  111.     [Infra,  §  800.] 

376 


CHAP.  VI.]  ADMINISTRATOR.  [§  225. 

on  his  guard  or  upon  his  inquiry,  the  sale  will  be  avoided  or  the 
purchaser  will  be  held  as  trustee.^  If  the  transfer  is  by  way  of 
pledge  or  sale  for  the  security  or  payment  of  the  private  debt 
of  the  administrator,  it  will  be  equivalent  to  full  notice  of  the 
illegality  of  the  transaction,  and  fraudulent.^  But  if  an  admin- 
istrator make  a  pledge  of  the  assets  for  a  contemporaneous 
advance  of  money  for  the  use  of  the  estate,  it  will  be  held  to  be 
a  valid  transaction;  or  if  the  sale  or  pledge  or  mortgage  is  after- 
wards made  for  a  previous  advance  made  in  good  faith  for  the 
alleged  benefit  of  the  estate,  it  will  be  valid. ^  Of  course  knowl- 
edge on  the  part  of  the  purchaser,  that  the  executor  or  admin- 
istrator is  dealing  with  the  assets  in  a  fiduciary  capacity,  is 
not  enough  to  raise  any  suspicion,  for  the  reason  that  it  is  the 
duty  of  the  administrator  to  dispose  of  the  assets  and  settle  the 
estate;  and  so  a  trustee  may  sell  and  transfer  absolutely  the  per- 
sonal property  of  his  trust,  if  he  have  power  to  vary  the  securi- 
ties; and  if  he  sells  and  transfers  notes,  stocks,  or  other  securities 
standing  in  his  name  as  trustee,  the  purchaser,  from  that  fact 
alone,  cannot  be  holden  as  a  constructive  trustee,  although  the 
trustee  in  fact  transfers  such  securities  or  order  to  obtain  money 
for  his  own  personal  use.  The  mere  fact  that  the  word  "  trus- 
tee" is  on  the  face  of  the  securities  cannot  put  a  purchaser  to 
any  inquiry  beyond  ascertaining  whether  the  trustee  has  power 
to  vary  the  securities,  (a)     If  he  has  such  power,  a  purchaser 

*  McNeilUe  v.  Acton,  4  De  G.,  M.  &  G.  744. 

-  Petrie  V.  Clark,  11  Serg.  &  R.  388;  Shaw  v.  Spencer,  100  Mass.  382; 
Judson  V.  National  City  Bank,  8  Blatch.  430,  and  cases  cited ;  Pendleton 
I'.  Fay,  2  Paige,  202;  Bayard  v.  Farmers',  &c.  Bank,  52  Penn.  St.  232; 
Baker  v.  Bliss,  39  N.  Y.  76;  Carr  v.  Hilton,  1  Curtis,  390-393;  Field  v. 
Scliieffelin,  7  Johns.  Ch.  155;  Williamson  r.  Morton,  2  Md.  Ch.  94;  Gar- 
rard V.  R.  R.  Co.,  29  Penn.  St.  154;  Collinson  v.  Lister,  7  Dc  G.,  M.  «S:  G. 
634;  Dodson  v.  Simpson,  2  Rand.  294;  Williamson  v.  Branch  Bank,  7  Ala. 
906. 

'  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Miles  v.  Durnford,  2  Sim.  (n.  s.) 
234;  Russell  v.  Plaice,  18  Beav.  21;  11  Jur.  124;  19  Jur.  445. 

(a)  The  description  of  the  grantee  of  the  trust  is  notice  to  subsequent 
in  a  deed  as  "trustee"  without  more  grantees  of  the  existence  of  whatever 
to  indicate  the  ccstuis  or  the  terms     trust  there  is  and  of  all  limitations 


§  225.] 


CONSTRUCTIVE    TRUSTS. 


[chap.  VI. 


in  good  faith  will  be  protected,  although  the  trustee  use  the 
money  for  his  private  purposes.^  But  if  a  purchaser  takes 
securities  from  a  trustee,  with  the  word  "trustee"  upon  their 
face,  in  payment  of  a  private  debt  due  from  the  trustee,  the 
sale  may  be  avoided  by  the  cestui  que  trust,  or  the  purchaser 
may  be  held  as  a  trustee.^  And  so,  if  an  executor,  guardian,  or 
trustee  hold  certificates  of  shares  in  a  corporation,  he  may  sell 
the  same,  and  the  corporation  would  be  protected  in  issuing 
new  certificates  to  the  purchaser,  but  if  the  corporation  knew 
that  the  sale  or  transfer  was  a  breach  of  the  trust  or  a  devastavit^ 

*  Ashton  V.  Atlantic  Bank,  3  Allen,  217;  Creigton  i;.  Ringle,  3  S.  C.  77; 
Dillaye  v.  Com.  Bank.  51  N.  Y.  355.     [  See  infra,  §  800,  note  a.] 

^  Shaw  V.  Spencer,  100  Mass.  388;  Jaudon  v.  National  Bank,  8  Blatch. 
430;  Duncan  v.  Jaudon,  14  Wall.  15.    [  See  infra,  §  800,  note  a.] 


upon  the  authority  of  the  trustee. 
Sternsfels  v.  Watson,  139  Fed.  505; 
Sturtevant  v.  Jaques,  14  Allen,  523; 
Johnson  v.  Calnan,  19  Colo.  168; 
Kenworthy  v.  Equitable  Trust  Co., 
218  Pa.  St.  286;  Snyder  v.  Collier, 
123  N.  W.  1023  (Neb.  1909).  See 
Davidson  v.  Mantor,  45  Wash.  660; 
Rua  V.  Watson,  13  S.  D.  453.  Al- 
though such  a  description  does  not 
in  itself  create  a  trust,  it  is  a  warn- 
ing to  every  one  who  reads  it. 
Geyser-Marion  Gold  Min.  Co.  v. 
Stark,  106  Fed.  558.  The  same  is 
true  where  certificates  of  stock 
stand  in  the  name  of  one  as 
"trustee,"  First  Nat.  Bank  v. 
Broadway  Bank,  156  N.  Y.  459; 
Shaw  V.  Spencer,  100  Mass.  382; 
Cooper  V.  lU.  Cen.  R.  Co.,  57  N.  Y. 
S.  925,  38  App.  Div.  22;  Bohlen's 
Estate,  75  Pa.  St.  304,  313;  Clemens 
V.  Heckscher,  185  Pa.  St.  476; 
Marbury  v.  Ehlen,  72  Md.  206.  See 
Grafflin  v.  Robb,  84  Md.  451;  or 
where  negotiable  paper  is  made 
payable  or  indorsed  to  him  as 
''trustee,"  Bank  v.  Looney,  99  Tenn. 

378 


278;  Ford  v.  Brown,  114  Tenn.  467, 
475;  Mercantile  Bank  v.  Parsons, 
54  Minn.  56;  Cunningham  v.  Daven- 
port, 147  N.  Y.  43;  Isham  v.  Post, 
71  Hun,  184;  Third  Nat.  Bank  i-. 
Lange,  51  Md.  139.  See  Fox  v.  Citi- 
zens' Bank  &  Tr.  Co.,  35  L.  R.  A. 
678  (Tenn.  1896);  or  where  a  bank 
deposit  stands  in  his  name  as  "trus- 
tee," Farmers'  &  Traders'  Bank 
V.  Fidelity  &  Dep.  Co.,  108  Ky. 
384;  State  Bank  v.  McCabe,  135 
Mich.  479;  or  an  account  with  a 
stock  broker.  Jeffray  v.  Towar, 
63  N.  J.  Eq.  530. 

The  same  principle  applies  where 
instead  of  the  word  "trustee"  some 
other  word  is  used  to  indicate  a 
fiduciary  capacity,  e.  g.,  guardian, 
agent  or  attorney.  Cohnfeld  v. 
Tanenbaum,  176  N.  Y.  126;  Shelton 
V.  Laird,  68  Miss.  175;  Hill  v.  Flem- 
ming,  128  Ky.  201;  Hazeltine  v. 
Keenan,  54  W.  Va.  600;  O'Herron 
V.  Gray,  168  Mass.  573.  But  see 
Sparrow  v.  State  Exch.  Bank,  103 
Mo.  App.  338. 


CHAP.  VI.]  STATUTE    OF    FRAUDS.  [§  22G. 

it  might  be  held  as  a  constructive  trustee  for  the  persons  bene- 
ficially interested;  but  the  mere  fact  that  the  fiduciary  character 
of  the  vendor  appeared  upon  the  face  of  the  transaction  would 
put  the  corporation  upon  no  inquiry  beyond  ascertaining 
whether  he  had  authority  to  change  the  securities.^  (a) 

§  226.  The  statute  of  frauds  is  no  obstacle  in  the  way  of 
proof  of  an  actual  or  constructive  fraud  in  the  sale  of  property.- 
Parol  evidence  is  admissible  to  establish  a  trust,  even  against 
a  deed  absolute  on  its  face,  if  it  would  be  a  fraud  to  set  up  the 
form  of  the  deed  as  conclusive.^  Lord  Hardwicke  stated  "that 
the  court  adhered  to  this  principle,  that  the  statute  of  frauds 
should  never  be  understood  to  protect  fraud,  and  therefore 
wherever  a  case  is  infected  with  fraud,  the  court  will  not  suffer 
the  statute  to  protect  it."  ^  Lord  Thurlow  added,  that  "  the 
moment  you  impeach  a  deed  for  fraud  you  must  either  deny  the 
effect  of  fraud  upon  the  deed,  or  you  must  admit  parol  evi- 
dence to  prove  it."  ^    If  this  was  not  so,  the  law  would  be  re- 

'  Ashton  V.  Atlantic  Bank,  3  Allen,  217;  and  cases  cited  supra. 
«  Kayser  v.  Maugham,  8  Col.  232;  Bohm  v.  Bohm,  9  id.  100. 
»  Hall  V.  Livingston,  3  Del.  Ch.  348. 

*  Reach  v.  Kennigate,  1  Ves.  125;  Young  v.  Peachey,  2  Atk.  258;  Walker 
V.  Walker,  id.  98;  Hutchins  v.  Lee,  1  Atk.  448;  Montacute  v.  Maxwell,  1 
P.  Wms.  620;  Lincoln  v.  Wright,  4  De  G.  &  J.  16;  Childers  v.  Childers,  1 
De  G.  &  J.  4S2;  Davis  v.  Oty,  35  Beav.  208;  Ryan  v.  Dox,  34  N.  Y.  307; 
Haigh  V.  Kaye,  L.  R.  7  Ch.  474. 

*  Shelborne  v.  Inchinquin,  1  Bro.  Ch.  350;  Hare  v.  Sherewood,  1  Ves. 
Jr.  243;  Townshend  v.  Stangroom,  6  Ves.  333;  Pym  v.  Blackburn,  3  Ves. 
38,  n.;  and  see  Conolly  v.  Howe,  5  Ves.  701. 

(a)  Since  there  is  no  presumption  t'.  111.  Cen.  R.  Co.,  57  N.  Y.  S.  925, 

that  a  trustee  has  authority  to  make  38  App.  Div.  22;  Bohlcn's  E.state,  75 

a  transfer  of  trust  property,  a  cor-  Pa.  St.  304,  313;  Lowell,  Transfer 

porat ion  which  at  his  request  makes  of  Stock,   §§  151,   152;   1  Cook  on 

a   transfer   on    its   books   of   stock  Corporations  (6th  ed.)  §  327.     It  is 

standing  in  his  name  as  trustee  may  said  to  be  othen\-ise  in  the  case  of 

be  liable  for  loss  due  to  an  unau-  executors    or    administrators    since 

thorized    transfer,    if    the    lack    of  they    may    be    presumed    to    have 

authority  could  have  been  learned  authority  to   sell    personalty.     See 

by  reasonable  investigation.    Cooper  infra,  §  809  et  seq. 

379 


§  226.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

duced  to  this  absurdity,  —  if  a  fraud  could  once  succeed  in 
procuring  the  transaction  to  be  reduced  to  writing  and  signed 
by  the  parties,  it  would  be  protected  by  the  law  itself,  and 
there  would  be  no  possible  means  of  reaching  and  correcting  the 
wrong.  But  in  such  case  the  bill  must  contain  a  clear  and  dis- 
tinct charge  of  fraud.^  Therefore,  whenever  the  bill  sets  out  a 
clear  case  of  fraud,  parol  evidence  will  be  admitted  to  prove  it, 
even  if  the  effect  of  such  evidence  is  to  contradict,  vary,  alter, 
or  destroy  written  instruments.^  The  mere  refusal  of  a  grantee 
to  execute,  or  the  denial  of  the  existence  of  an  invalid  parol  trust 
upon  which  she  promised  to  hold  the  property,  is  not  such  a 
fraud  as  will  take  the  case  out  of  the  statute.^  (a)  But  where  a 
valuable  interest  passes  to  one  on  the  faith  of  a  contract  he 
refuses  to  perform,  equity  will  compel  restitution  or  give  other 
appropriate  relief.^  In  any  case  if  the  trust  arises  from  the  acts 
of  the  parties,  and  not  exclusively  from  their  agreements,  the 
statute  of  frauds  is  not  a  bar  to  the  proof.'^    But  where  a  con- 

1  Imham  v.  Child,  1  Bro.  Ch.  94;  Portmore  v.  Morris,  2  Bro.  Ch.  219; 
Forsyth  v.  Clark,  3  Wend.  637;  Gouverneur  v.  Elmendorf,  5  Johns.  Ch. 
79;  Kennedy  v.  Kennedy,  2  Ala.  571;  Skrine  v.  Simmons,  11  Ga.  401;  Mc- 
Calmont  v.  Rankin,  8  Hare,  18. 

2  Young  V.  Peachey,  2  Atk.  257;  Thynn  v.  Thynn,  1  Vern.  296;  Imham 
V.  Child,  1  Bro.  Ch.  93;  Cripps  v.  Gee,  4  Bro.  Ch.  475;  Oldham  v.  LecMord,  2 
Vern.  506;  Drakeford  v.  Wilks,  3  Atk.  539;  Reach  v.  Kennigate,  1  Ves.  125; 
Amb.  67;  Pember  v.  Mathers,  1  Bro.  Ch.  52;  Wilkinson  v.  Bradfield,  1  Vern. 
307;  Miller  v.  Cotton,  5  Ga.  346;  Christ  v.  Diffenbach,  1  Serg.  &  R.  464; 
Watkins  v.  Stockett,  6  H.  &  J.  345;  Elliott  v.  Connell,  5  Sm.  &  M.  91;  Bar- 
rell  V.  Hanrick,  42  Ala.  60  (b);  Judd  v.  Mosely,  31  Iowa,  433. 

3  Scott  V.  Harris,  113  111.  447;  Tatge  v.  Tatge,  34  Minn.  275;  Townsend 
V.  Fenton,  32  Minn.  482. 

*  Randall  v.  Constans,  33  Minn.  329;  Johnson  v.  Krassin,  25  Minn.  118. 
[  See  supra,  §  181,  note,  p.  289  et  seq.] 

*  Judd  V.  Mosely,  30  Iowa,  428;  Bryant  i'.  Hendricks,  5  Iowa,  256; 
Kincell  v.  Feldman,  22  Iowa,  363;  Ferguson  v.  Hass,  64  N.  C.  772;  Squire's 
App.,  70  Penn.  St.  268;  Reese  v.  Wallace,  113  111.  595.  And  so  the  statute 
of  frauds  is  not  a  bar  to  reUef  in  other  cases  of  absolute  deeds,  where  they 

(a)  There  is  much  authority  to  ruled  in  Brock  v.  Brock,  90  Ala.  86; 

the    contrary.      See   supra,    §    181,  Manning   v.  Pippen,   86  Ala.  357; 

note,  p.  289  et  seq.  95  Ala.  537. 

(6)   Barrel!  v.  Hanrick  was  over- 

380 


CIIAP.  VI.]  STATUTE    OF    FRAUDS.  [§  226 

veyance  in  trust  is  made  voluntarily  without  solicitation  or 
undue  influence,  a  mere  promise  to  hold  in  trust  is  within  the 

are  used  in  a  manner  and  for  purposes  not  contemplated  at  the  time  of 
their  execution.  Thus  a  deed  may  be  shown  to  be  a  mortgage  or  security 
for  a  debt,  although  there  was  no  written  defeasance,  and  no  fraud,  accident, 
or  mistake.  [  Potter  r.  Kimball,  186  Mass.  120;  Weiseham  v.  Hockcr,  7  Okla. 
250;  Stafford  v.  Stafford,  29  Tex.  Civ.  App.  73.]  This  proposition  has 
been  much  discussed.  The  latest  case,  Campbell  t'.  Dearborn,  109  Mass. 
130,  contains  a  review  of  the  authorities  and  a  succinct  statement  of  the 
doctrine;  and  as  it  is  upon  a  subject  closely  connected  with  constructive 
trusts,  the  case  is  given  at  large. 

"  From  those  facts,  and  from  the  bill  and  answer,  we  think  these  points 
must  be  taken  to  be  established;  to  wit,  Ist,  that  the  plaintiff  had  pur- 
chased the  parcel  of  land  in  controversy,  and  held  a  contract  from  Tirrill 
for  its  conveyance  to  himself  upon  payment  of  the  sum  of  $.5,500;  2d,  that 
the  money  was  advanced  by  the  defendant  to  the  plaintiff  as  a  loan,  and 
the  deed  from  the  plaintiff  to  the  defendant  was  given  by  way  of  security 
therefor.  The  report  finds,  'from  all  the  circumstances  surrounding  the 
transaction,  and  from  the  acts  and  declarations  of  the  parties  at  the  time, 
that  the  plaintiff  beUeved  and  had  reason  to  believe'  this  to  be  the  case. 

"  From  the  whole  case  we  are  satisfied  that  it  was  a  transaction  between 
borrower  and  lender,  and  not  a  real  purchase  of  the  land  by  the  defendant. 
We  are  brought,  then,  to  the  question,  Can  equity  relieve  in  such  a  case? 

"  The  decisions  in  the  courts  of  the  United  States,  and  the  opinions 
declared  by  its  judges,  are  uniform  in  favor  of  the  existence  of  the  power, 
and  the  propriety  of  its  exercise  by  a  court  of  chancery.  Hughes  t'.  Ed- 
wards, 9  Wheat.  489;  Sprigg  v.  Bank  of  Mount  Pleasant,  14  Pet.  201,  208; 
Morris  v.  Nixon,  1  How.  118;  Russell  t-.  Southard,  12  How.  139;  Taylor 
V.  Luther,  2  Sumner,  228;  Flagg  v.  Mann,  id.  486;  Jenkins  i'.  Eldredge,  3 
StOT}',  181;  Bentley  v.  Phelps,  2  Wood,  &  M.  426;  Wyman  v.  Babcock,  2 
Curtis  C.  C.  386,  398;  s.  c.  19  How.  289.  Although  not  bound  by  the 
authority  of  the  courts  of  the  United  States  in  a  matter  of  this  sort,  still 
we  deem  it  to  be  important  that  uniformity  of  interpretation  and  adminis- 
tration of  both  law  and  equity  should  prevail  in  the  State  and  federal 
courts.  We  are  disposed,  therefore,  to  yield  much  deference  to  the  decisions 
above  referred  to,  and  to  follow  them  unless  we  can  see  that  they  are  not 
supported  by  sound  principles  of  jurisprudence,  or  that  they  conflict  with 
rules  of  law  already  settled  by  the  decisions  of  our  o\\ti  courts. 

"  We  cannot  concur  in  the  doctrine  advanced  in  some  of  the  cases,  that 
the  subsequent  attempt  to  retain  the  property,  and  refusal  to  permit  it  to 
be  redeemed,  constitute  a  fraud  or  breach  of  trust,  which  affords  ground 
of  jurisdiction  and  judicial  interference.  There  can  be  no  fraud  or  legal 
wrong  in  the  breach  of  a  trust  from  which  the  statute  withholds  the 
right  of  judicial  recognition.  Such  conduct  may  sometimes  appear  to 
relate  back,  and  give  character  to  the  original  transaction,  by  shomng,  in 

381 


§  226.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

statute.^  If  a  bill  is  brought  for  relief,  on  the  ground  that  the 
instrument  is  framed  contrary  to  the  intention  of  the  parties 

that,  an  express  intent  to  deceive  and  defraud.  But  ordinarily  it  will  not 
be  connected  with  the  original  transaction  otherwise  than  constructively, 
or  as  involved  in  it  as  its  legitimate  consequence  and  natural  fruit.  In 
this  aspect  only  can  we  regard  it  in  the  present  case. 

"  The  decisions  in  the  federal  courts  go  to  the  full  extent  of  affording 
relief,  even  in  the  absence  of  proof  of  express  deceit  or  fraudulent  purpose 
at  the  time  of  taking  the  deed,  and  although  the  instrument  of  defeasance 
'be  omitted  by  design  upon  mutual  confidence  between  the  parties.'  In 
Russell  V.  Southard,  12  How.  139,  148,  it  is  declared  to  be  the  doctrine  of 
the  court,  '  that,  when  it  is  alleged  and  proved  that  a  loan  on  security  was 
really  intended,  and  the  defendant  sets  up  the  loan  as  payment  of  purchase- 
money,  and  the  conveyance  as  a  sale,  both  fraud  and  a  vice  in  the  con- 
sideration are  sufficiently  averred  and  proved  to  require  a  court  of  equity 
to  hold  the  transaction  to  be  a  mortgage.'  The  conclusion  of  the  court 
was,  '  that  the  transaction  was  in  substance  a  loan  of  money  upon  security 
of  the  farm,  and,  being  so,  a  court  of  equity  is  bound  to  look  through  the 
forms  in  which  the  contrivance  of  the  lender  has  enveloped  it,  and  declare 
the  conveyance  of  the  land  to  be  a  mortgage.' 

"This  doctrine  is  analogous,  if  not  identical,  with  that  which  has  so 
frequently  been  acted  upon  as  to  have  become  a  general  if  not  universal 
rule,  in  regard  to  conveyances  of  land  where  provision  for  reconveyance  is 
made  in  the  same  or  some  contemporaneous  instrument.  In  such  cases, 
however  carefully  and  explicitly  the  writings  are  made  to  set  forth  a  sale 
with  an  agreement  for  repurchase,  and  to  cut  off  and  renounce  all  right  of 
redemption  or  reconveyance  otherwise,  most  courts  have  allowed  parol 
evidence  of  the  real  nature  of  the  transaction  to  be  given,  and,  upon  proof 
that  the  transaction  was  really  and  essentially  upon  the  footing  of  a  loan 
of  money,  or  an  advance  for  the  accommodation  of  the  grantor,  have  con- 
strued the  instruments  as  constituting  a  mortgage;  holding  that  any  clause 
or  stipulation  therein,  which  purports  to  deprive  the  borrower  of  his  equit- 
able rights  of  redemption,  is  oppression,  against  the  policy  of  the  law,  and 
to  be  set  aside  by  the  courts  as  void.  4  Kent,  Com.  159;  Cruise,  Dig. 
(Greenl.  ed.)  tit.  xv.  c.  1,  §  21;  2  Washb.  Real  Prop.  (3d.  ed.)  42;  WilHams 
on  Real  Prop.  353;  Story,  Eq.  §  1019;  Adams,  Eq.  112;  3  Lead.  Cas.  in  Eq. 
{3d  Am.  ed.);  White  &  Tudor's  notes  to  Thornbrough  v.  Baker,  pp.  605 
[*874]  et  seq.;  Hare  &  Wallace's  notes  to  s.  c.  pp.  624  [*894]  et  seq. 

"  The  rule  has  been  frequently  recognized  in  Massachusetts,  where,  until 
1855,  the  courts  have  held  their  jurisdiction  of  foreclosure  and  redemption 
of  mortgages  to  be  limited  to  cases  of  a  defeasance  contained  in  the  deed 
or  some  other  instrument  under  seal.  Erskine  v.  Townsend,  2  Mass.  493; 
Killeran  v.  Brown,  4  Mass.  443;  Taylor  v.  Weld,  5  Mass.  109;  Carey  v. 


'  McClain  v.  McClain,  57  Iowa,  167.    [  But  see  supra,  §  181,  note,  p. 
289  et  seq.] 


382 


CHAP.  VI.]  STATUTE    OF    FRAUDS.  [§  226. 

through  mistake,  accident,  surprise,  or  fraud,  in  such  case, 
Lord  Hardwicke  said  "that  a  mistake  could  never  be  proved 

Rawson,  8  Mass.  159;  Parks  v.  Hall,  2  Pick.  206,  211;  Rice  v.  Rice,  4  Pick. 
349;  Flagg  v.  Mann,  14  Pick.  467,  478;  Eaton  v.  Green,  22  Pick.  526. 
The  case  of  Flagg  v.  Mann  is  explicit,  not  only  upon  the  authority  of  the 
court  thus  to  deal  with  the  written  inst  ruments  of  the  parties,  but  also  upon 
the  point  of  the  competency  of  parol  testimony  to  estabhsh  the  facte  by 
which  to  control  their  operation;  although,  upon  consideration  of  the  parol 
testimony  in  that  case,  the  court  came  to  the  conclusion  that  there  was  a 
sale  in  fact  and  not  a  mere  security  for  a  loan. 

"By  the  statute  of  1855,  c.  194,  §  1,  jurisdiction  was  given  to  this  court 
in  equity  '  in  all  cases  of  fraud,  and  of  conveyances  or  transfers  of  real  estate 
in  the  nature  of  mortgages.'  Gen.  Sts.  c.  113,  §  2.  The  authority  of  the 
courts  under  tliis  clause  is  ample.  It  is  limited  only  by  those  considerations 
which  guide  courts  of  full  chancery  powers  in  the  exercise  of  all  those  powers. 

"If,  then,  the  advantage  taken  of  the  borrower  by  the  lender,  in  re- 
quiring of  him  an  agreement  that  he  will  forego  all  right  of  redemption 
in  case  of  non-payment  at  the  stipulated  time,  or  an  absolute  deed  with  a 
bond  or  certificate  back,  which  falsely  recites  the  character  of  the  trans- 
action, representing  it  to  be  a  sale  of  the  land  with  a  privilege  of  repur- 
chase, be  a  sufficient  ground  for  interference  in  equity  by  restricting  the 
operation  of  the  deed,  and  converting  the  writings  into  a  mortgage,  con- 
trar>'  to  the  expressed  agreement,  it  is  difficult  to  see  why  the  court  may 
not  and  ought  not  to  interpose  to  defeat  the  same  wrong,  when  it  attempts 
to  reach  its  object  by  the  simpler  process  of  an  absolute  deed  alone.  In 
each  case  the  relief  is  contrary  to  the  terms  of  the  written  agreement.  In 
one  case  it  is  against  the  express  words  of  the  instrument  or  clause  relied 
on  as  a  defeasance,  on  the  ground  that  it  was  oppressive  and  wrongful  to 
withhold  or  omit  the  formal  defeasance.  In  strictness,  there  is  no  defeas- 
ance in  either  case.  The  wrong  on  the  part  of  the  lender  or  grantor, 
which  gives  the  court  its  power  over  his  deed,  is  the  same  in  both.  'For 
they  who  take  a  conveyance  as  a  mortgage  without  any  defeasance 
are  guilty  of  a  fraud.'  Cotterell  v.  Purchase,  Cas.  temp.  Talbot,  61.  See  also 
Barnhart  v.  Greenshields,  9  Moore,  P.  C.  IS;  Baker  v.  Wind,  1  Vcs.  Sen. 
160;  Mahlor  t'.  Lees,  2  Atk.  494;  Williams  v.  Owen,  5  Myl.  &  Cr.  303;  Lin- 
coln V.  Wright,  4  De  Gex  &  Jones,  16. 

"As  a  question  of  evidence,  the  principle  is  the  same.  In  either  case 
the  parol  evidence  is  admitted,  not  to  vary,  add  to,  or  contradict  the  writ- 
ings, but  to  estabUsh  the  fact  of  an  inherent  fault  in  the  transaction  or  its 
consideration,  which  aflfords  ground  for  avoiding  the  effect  of  the  writings 
by  restricting  their  operation,  or  defeating  them  altogether.  This  is  a 
general  principle  of  evidence,  well  established  and  recognized,  both  at  law 
and  in  equity.  Stackpole  v.  Arnold,  11  Mass.  27;  Fletcher  v.  Willard,  14 
Pick.  464;  1  Greenl.  Ev.  §  2S4;  Perry  on  Tnists,  §  226. 

"The  reasons  for  extending  the  doctrine,  in  equity,  to  absolute  deeds, 

383 


§  226.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

but  by  parol  evidence,  consequently  it  must  be  received."  ^  But 
where  through  mistake  of  law,  or  carelessness  or  inattention,  an 

where  there  is  no  provision  for  reconveyance,  are  ably  presented  by  Hare 
&  Wallace  in  their  notes  to  Woollam  v.  Hearne,  2  Lead.  Cas.  in  Eq.  (3d 
Am.  ed.)  676,  and  to  Thornborough  v.  Baker,  3  id.  624.  See  also  Adams 
Eq.  Ill;  1  Sugd.  Vend.  (8th  Am.ed.),  Perkins's  notes,  pp.  267,  268,  302,  303. 
The  doctrine  thus  extended  is  declared,  in  numerous  decisions,  to  prevail 
in  New  York;  also  in  Vermont  and  several  other  States.  Mr.  Washburn, 
in  his  chapter  on  mortgages,  §  1,  has  exhibited  the  law  as  held  in  the  dif- 
ferent States,  in  this  particular;  and  the  numerous  references  there  made,  as 
well  as  by  the  annotators  in  the  other  treatises  which  we  have  cited,  render 
it  superfluous  to  repeat  them  here.    2  Washb.  Real  Prop.  (3d.  ed.)  35  et  seq. 

"Upon  the  whole,  we  are  convinced  that  the  doctrine  may  be  adopted 
without  violation  of  the  statute  of  frauds,  or  of  any  principle  of  law  or  evi- 
dence; and,  if  properly  guarded  in  administration,  may  prove  p>  sound 
and  salutary  principle  of  equity  jurisprudence.  It  ia  a  power  to  be  exer- 
cised with  the  utmost  caution,  and  only  when  the  grounds  of  interference 
are  fully  made  out,  so  as  to  be  clear  from  doubt. 

"It  is  not  enough  that  tho  relation  of  borrower  and  lender,  jr  debtor 
and  creditor,  existed  at  the  time  the  transaction  was  entered  upon.  Ne- 
gotiations, begun  with  a  view  to  a  loan  or  security  for  a  debt,  may  fairly 
terminate  in  a  sale  of  the  property  originally  proposed  for  security.  And 
if,  without  fraud,  oppression,  or  unfair  advantage  taken,  a  sale  is  the  real 
result,  and  not  a  form  adopted  "s  a  cover  or  pretext,  it  should  be  sus- 
taind  by  the  court.  It  is  to  the  determination  of  this  question  that  the 
parol  evidence  is  mainly  directed. 

"  The  chief  inquiry  is,  in  most  cases,  whether  a  debt  was  created  by  the 
transaction,  or  an  existing  debt,  which  formed  or  entered  into  the  consid- 
eration, continued  and  kept  alive  afterwards.  'If  the  purchaser,  instead 
of  taking  the  p>k  of  the  subject  of  the  contract  on  himself,  takes  a  secur- 
ity for  repayment  of  the  principal,  that  will  not  vitiate  the  transaction  and 
render  it  a  mortgage  security.'  1  Sugd.  Vend.  (8th  Am.  ed.)  302,  in  support 
of  which  the  citations  by  Mr.  Perkins  are  numerous.  But  any  recognition 
of  the  debt  as  still  subsisting,  if  clearly  established,  is  equally  efBcacious; 
as  the  receipt  or  demand  of  interest  or  part  payment.  Eaton  v.  Green,  22 
Pick.  526,  530. 

"Although  proof  of  the  existence  and  continuance  of  the  debt,  for  which 


-  Baker  v.  Paine,  1  Ves.  457;  Towers  v.  Moor,  2  Vem.  98;  Langley  v. 
Brown,  2  Atk.  203;  Townsend  v.  Stangroom,  6  Ves.  328;  Taylor  v.  Radd, 
5  Ves.  595,  596,  n.;  Henkle  v.  Royal  Ins.  Co.,  1  Ves.  318;  Rogers  v.  Earl, 
1  Dick.  294;  Barstow  v.  Kilvington,  5  Ves.  593 ;  Hunt  v.  Rousmanier,  8  Wheat. 
174;  Gower  v.  Sternes,  2  Whart.  75;  Keisselbrock  v.  Livingston,  4  Johns. 
Ch.  144;  Peterson  v.  Grover,  20  Maine,  363;  Newson  v.  Bufferlow,  1  Dev. 
Eq.  379;  Goodell  v.  Freed,  15  Vt.  448;  Harrison  v.  Howard,  1  Ired.  Eq.  407; 
Blanchard  v.  Moore,  4  J.  J.  Marsh.  471;  Perry  j;.  Pearson,  1  Humph.  431. 

384 


CHAP.  VI.]  STATUTE    OF    FRAUDS.  [§  226. 

important  provision  is  omitted  from  a  deed,  and  no  fraud  is 
charged  or  proved,  parol  evidence  cannot  be  received  against 
the  denial  of  the  defendant  in  his  answer  to  reform,  vary,  or 
defeat  the  instrument.'    Parol  evidence,  however,  is  not  favor- 

the  conveyance  was  made,  if  not  decisive  of  the  character  of  the  transaction 
as  a  mortgage,  is  most  infiuential  to  that  effect,  yet  the  absence  of  such  proof 
is  far  from  being  conclusive  to  the  contrary.  Rice  v.  Rice,  4  Pick.  349; 
Flagg  V.  Mann,  14  Pick.  467,  478;  Russell  v.  Southard,  12  How.  139;  Browne 
V.  Dewey,  1  Sandf.  Ch.  56.  When  it  is  considered  that  the  inquiry  itself  is 
supposed  to  be  made  necessary  by  the  adoption  of  forms  and  outward  ap- 
pearance differing  from  the  reality,  it  is  hardly  reasonable  that  the  absence 
of  an  actual  debt,  manifested  by  a  written  acknowledgment  or  an  express 
promise  to  pay,  should  be  regarded  as  of  more  significance  than  the  absence 
of  a  formal  defeasance.  It  of  course  compels  the  party  attempting  to 
impeach  the  deed,  to  make  out  his  proofs  by  other  and  less  decisive 
means.     But  as  an  affirmative  proposition  it  cannot  have  much  force. 

"A  mortgage  may  exist  without  any  debt  or  other  personal  liability  of 
the  mortgagor.  If  there  is  a  large  margin  between  the  debt  or  sum  ad- 
vanced and  the  value  of  the  land  conveyed,  that  of  itself  is  an  assurance 
of  payment  stronger  than  any  promise  or  bond  of  a  necessitous  bor- 
rower or  debtor.  Hence  inadequacy  of  price,  in  such  case,  becomes  an 
important  element  in  establishing  the  character  of  the  transaction.  Inade- 
quacy of  price,  though  not  of  itself  alone  sufficient  ground  to  set  in  motion 
chancery  powers  of  the  court,  may  nevertheless  properly  be  effective  to 
quicken  their  exercise,  where  other  sufficient  ground  exists:  Story,  Eq. 
§§  239,  245,  246;  and  in  connection  with  other  evidence  may  afford  strong 
ground  of  inference  that  the  transaction  purporting  to  be  a  sale  was  not 
fairly  and  in  reality  so.  Kerr  on  Fraud  and  Mistake,  186  and  note;  Wharf 
r.  Howell,  5  Binn.  499. 

"Another  circumstance  that  may  and  ought  to  have  much  weight  is 
the  continuance  of  the  grantor  in  the  use  and  occupation  of  the  land  aa 
owner,  after  the  apparent  sale  and  conveyance.  Cotterell  v.  Purchase,  Cas. 
temp.  Talbot,  61;  Lincoln  v.  Wright,  4  De  Gex  &  Jones,  16. 

"These  several  considerations  have  more  or  less  weight,  according  to 
the  circumstances  of  each  case.  Conway  v.  Alexander,  7  Cranch,  21S; 
Bentley  v.  Phelps,  2  Wood.  &  M.  426.  It  is  not  necessary  that  all  should 
concur  to  the  same  result  in  any  case.  Each  case  must  be  determined  upon 
its  own  special  facts;  but  those  should  be  of  clear  and  decisive  import." 
So,  if  it  is  necessary  for  an  absolute  grantee  to  come  into  a  court  of  equity 
for  rehef,  as  for  a  loss  of  the  deeds,  the  court  can  compel  him  to  do  equity, 
as  to  make  a  settlement  upon  parties  entitled  to  a  settlement  by  parol 
understanding.    Phillips  v.  Phillips,  50  Mo.  603. 


'  Lemon  v.  Whitely,  4  Russ.  423;  Imham  v.  Child,  1  Bro.  Ch.  92;  Port- 
more  I'.  Morris,  2  id.  219;  Rich  v.  Jackson,  4  id.  614;  6  Ves.  334,  n.;  Jack- 

voL.  I.  —  25  385 


§  227.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

ably  received  by  courts  in  any  case,  and  they  will  not  act  upon 
it  against  written  instruments,  unless  it  is  exceedingly  clear 
and  certain,  and  uncontradicted  by  other  evidence.^  In  Penn- 
sylvania, however,  a  different  rule  prevails,  and  parol  evidence 
of  the  verbal  agreements  and  stipulations  upon  the  faith  of 
which  the  contract  was  made,  is  received  in  evidence  to  control 
its  operation  or  to  explain  its  meaning.^ 

§  227.  The  right  of  a  party  who  has  been  defrauded  of  the 
title  to  his  land  is  not  a  mere  right  of  action  to  set  the  deed 
aside,  but  it  is  an  equitable  estate  in  the  land  itself,  which  may 
be  sold,  assigned,  conveyed,  and  devised.^  In  the  view  of  a 
court  of  equity,  he  is  still  the  owner  of  the  estate,  subject  to 
repay  whatever  money  or  other  property  he  may  have  received 
from  the  fraudulent  grantee.  And  so  the  equitable  interest  of 
a  purchaser  under  a  contract  of  sale  is  of  that  character  that  it 
may  be  assigned  or  devised.'* 

8on  V.  Cator,  5  Ves.  688;  Hare  v.  Sherwood,  1  Ves.  Jr.  241;  Anon.  Skin.  159; 
Mortimer  t;.  Shortall,  2  Dr.  &  W.  363;  Alexander  v.  Crosbie,  Llo.  &  Go.  145; 
London  R.  Co.  v.  Winter,  1  Cr.  &  Phil.  57;  Garwood  v.  Eldridge,  1  Green, 
Ch.  146;  Lyon  v.  Richmond,  2  Johns.  Ch.  60;  Wheaton  v.  Wheaton,  9  Conn. 
96;  Hunt  v.  Rousmanier,  1  Pet.  1;  Parkhurst  v.  Van  Cortlandt,  1  Johns. 
Ch.  282;  Westbrook  v.  Harbeson,  2  McCord,  Ch.  112;  Dwight  v.  Pomroy, 
17  Mass.  303;  Robson  v.  Harw^ell,  6  Ga.  589;  Chamness  v.  Crutchfield,  2 
Ired.  Eq.  148;  Movan  v.  Hayes,  1  Johns.  Ch.  339;  RatcUff  v.  Ellison,  3 
Rand.  537;  Richardson  v.  Thompson,  1  Humph.  151. 

1  Barrow  v.  Greenhough,  3  Ves.  154;  Townshend  v.  Stangroom,  6  Ves. 
334;  Shelbome  v.  Inchinquin,  1  Bro.  Ch.  341;  Miller  v.  Gotten,  5  Ga.  346. 
See  the  whole  matter  elaborately  discussed  and  all  the  authorities  collected 
in  notes  to  WooUam  v.  Heame,  2  Lead.  Caa.  Eq.  684;  Barkley  v.  Lane, 
6  Bush,  58 ;  Collier  v.  Colher,  30  Ind.  32;  Lingenfitter  v.  Richings,  62  Penn.  St. 
128. 

'  Chalfant  v.  WiUiams,  35  Penn.  St.  212;  Clark  v.  Partridge,  2  Barr, 
13;  4  Barr,  166;  Oliver  v.  Oliver,  4  Rawie,  141;  Rearich  v.  Swinehart, 
1  Jones,  238;  Christ  v.  Diffenbach,  1  Serg.  &  R.  464. 

'  Stump  i;.  Gaby,  2  De  G.,  M.  &  G.  623;  McKissick  v.  Pickle,  4  Harris, 
140;  Kane  County  v.  Herrington,  50  111.  232. 

*  Stump  V.  Gaby,  2  De  G.,  M.  &  G.  623;  Morgan  v.  Halford,  1  Sm.  & 
Gif.  101;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231;  Mahn  v.  Malin,  1  Wend. 
625;  Clapper  v.  House,  6  Paige,  149;  Kent  v.  Mehaffey,  10  Ohio  St.  204. 

386 


CHAP.  VI.]  LACHES.  [§  229. 

§  228.  Time  does  not  bar  a  direct  trust  where  the  relation 
of  trustee  and  cestui  que  trust  is  admitted  to  exist,  but  dili- 
gence must  be  used  to  establish  a  constructive  trust  on  the 
ground  of  fraud.  A  court  of  equity  will  refuse  its  aid  to  stale 
demands,  where  a  party  has  slept  upon  his  rights,  or  has  ac- 
quiesced for  a  great  length  of  time.^  And  so  a  constructive 
trust  will  be  barred  by  long  acquiescence,  although  the  fraud 
was  evident  and  the  relief  was  originally  clear.^  It  is  difficult 
to  state  as  a  general  proposition  what  length  of  time  will  bar 
relief  from  the  consequences  of  a  fraud.  It  is  necessarily  sub- 
ject to  the  equitable  discretion  of  the  court,  and  must  depend 
upon  the  nature  of  each  case  and  the  circumstances  of  the 
parties. 

§  229.  Therefore  no  certain  time  can  be  stated  as  a  limit 
beyond  which  relief  will  not  be  given.    In  several  cases  twenty 

»  Smith  I'.  Clay,  3  Bro.  Ch.  639,  n.;  Cholmondeley  v.  Clinton,  1  J.  & 
W.  151;  Chalmer  v.  Bradley,  id.  59;  Beckford  v.  Wade,  17  Ves.  97;  Port- 
lock  V.  Gardner,  1  Hare,  594;  Hawley  v.  Cramer,  4  Cow.  117;  Dobson  v. 
Racey,  3  Sandf.  Ch.  61;  Powell  v.  Murray,  2  Edw.  Ch.  644;  10  Paige,  256; 
Piatt  V.  Vatier,  9  Pet.  405;  McKnight  v.  Taylor,  1  How.  161;  Wagner  v. 
Baird,  7  How.  234;  Veasie  v.  Williams,  8  How.  134;  Hallett  v.  Collins,  10 
How.  174;  Hough  v.  Richardson,  3  Story,  659;  Gould  v.  Gould,  3  Story, 
516;  Peebles  v.  Reading,  8  Serg.  &  R.  484;  Irvine  v.  Robertson,  3  Rand. 
549;  Colman  v.  Lyne,  4  Rand.  454;  Anderson  v.  Burchell,  6  Grat.  405;  2 
Story's  Eq.  Jur.  §  1520,  notes. 

*  Bonny  j;.  Ridgard,  cited  4  Bro.  Ch.  138;  Andrew  v.  Wrigley,  4  Bro. 
Ch.  124;  Blennerhassett  v.  Day,  2  B.  &  B.  118;  Gregory  v.  Gregory,  Cowp. 
201 ;  Jac.  631 ;  Selsey  v.  Rhoades,  1  Bligh  (n.  s.),  1 ;  Champion  v.  Rigby,  1  R.  & 
M.  539;  Ex  parte  Granger,  2  Deac.  &  Ch.  459;  Collard  v.  Hare,  2  R.  &  M. 
675;  Norris  v.  Neve,  2  Atk.  38;  Pryce  v.  Bym,  5  Ves.  681,  cited  Campbell 
V.  Campbell,  id.  678,  682;  Morse  r.  Royal,  12  Ves.  355;  Medlicott  v.  O'Don- 
nell,  1  B.  &  B.  156;  Hatfield  v.  Montgomery,  2  Porter,  58;  Bond  v.  Brown,  1 
Harp.  Eq.  270;  Edwards  v.  Roberts,  7  Sm.  &  M.  544;  Peacock  j-.  Black, 
Halst.  Eq.  535;  Steele  v.  Kinkle,3  Ala.  352;  Smith  v.  Clay,  Amb.  645;  Bond  v. 
Hopkins,  1  Sch.  &.  Lef.  413;  Hovenden  v.  Annesley,  2  Sch.  &  Lef,  630- 
640;  Stackhouse  v.  Bamston,  10  Ves.  466;  Ex  parte  Dewdney,  15  Ves.  496; 
Kane  v.  Bloodgood,  7  Johns.  Ch.  93;  Dexter  v.  Arnold,  3  Sumn.  152;  De- 
couche  V.  Savetier,  3  Johns.  Ch.  190;  Murray  v.  Coster,  20  Johns.  576; 
Prevost  V.  Gratz,  6  Wheat.  481 ;  Hughes  v.  Edwards,  9  Wheat.  489 ;  Elmendorf 
V.  Taylor,  10  Wheat.  168;  Miller  v.  Mclntire,  6  Pet.  61;  Sherwood  v.  Sutton, 
5  Mason,  143;  Williams  v.  First  Pres.  See,  1  Ohio  St.  478. 

387 


§  229.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

years  has  been  held  to  be  a  bar;  ^  and  so  where  one  had  ac- 
quiesced for  twenty-five  years,-  and  twenty-one  years,^  and  in 
another  case  the  lapse  of  eighteen  years  was  held  to  be  a  bar.* 
So  a  delay  of  thirty  years,^  of  thirty-eight  years/  of  forty-six 
years/  of  fifty  years,^  of  twenty-seven  years,^  and  of  seventeen 
years/°  has  been  held  to  be  such  laches,  if  unexplained,  as  would 
be  a  bar  to  a  bill  for  relief.  Under  the  circumstances  of  other 
cases,  a  delay  of  twelve  years,^^  of  eleven  years,^^  of  eighteen 
years,  was  held  to  be  no  bar.^^  In  Michoud  v.  Girod  the  law 
was  elaborately  examined  and  stated  by  Mr.  Justice  Wayne  as 
follows,  "that  within  what  time  a  constructive  trust  will  be 
barred  must  depend  upon  the  circumstances  of  the  case.^'*  There 

1  Smith  t'.  Clay,  3  Bro.  Ch.  639,  n.;  Hovenden  v.  Annesley,  2  Sch.  & 
Lef.  636;  Stackhouse  v.  Bamston,  10  Ves.  466;  Pryce  v.  Bym,  5  Ves.  681; 
Ward  V.  Van  Bokkelen,  1  Paige,  100;  Thompson  v.  Blair,  3  Murph.  593; 
Farr  v.  Farr,  1  Hill,  Eq.  391;  Field  v.  Wilson,  6  B.  Mon.  479;  Bruce  v.  Child, 
4  Hawks,  372;  Perry  v.  Craig,  3  Miss.  52.5;  Ferris  v.  Henderson,  12  Penn.  St. 
54;  Bank  of  U.  S.  v.  Biddle,  2  Pars.  Eq.  31;  Walker?;.  Walker,  16  Serg.  &  R. 
379;  McDowell  v.  Goldsmith,  2  Md.  Ch.  370;  Norris's  App.  71  Penn.  St.  124. 
In  Paschall  v.  Hinderer,  28  Ohio  St.  568,  it  is  said:  The  statute  does  not  apply 
in  equity  to  bar  a  trust  except  in  three  classes  of  cases:  first,  where  there  is 
a  concurrent  remedy  at  law  to  which  there  is  a  fixed  limitation;  second, 
where  there  is  an  open  denial  of  the  trust,  with  notice  which  requires  action 
by  the  cestui  que  trust,  and  afterwards  a  lapse  of  time  which  would  amount 
to  a  bar  in  law;  and  third,  where  there  are  circumstances  shown  which  with 
lapse  of  time  raise  a  presumption  that  the  trust  has  been  extinguished. 

*  Blennerhassett  v.  Day,  2  B.  &  B.  118. 
'  Selsey  v.  Rhoades,  1  Bhgh  (n.  s.)  1. 

*  Gregory  v.  Gregory,  Coop.  201;  Jac.  631;  Champion  v.  Rigby,  1  R. 
&  M.  539;  Roberts  v.  Tunstall,  4  Hare,  257. 

«  Harrod  v.  Fountleroy,  3  J.  J.  Marsh.  548;  Phillips  v.  Belden,  2  Edw. 
Ch.  1;  Page  v.  Booth,  1  Rob.  Va.  161;  Bond  v.  Brown,  Harp.  Eq.  270. 

*  Powell  V.  Murray,  10  Paige,  256. 

^  Maxwell  v.  Kennedy,  8  How.  210. 

*  Anderson  v.  Barwell,  6  Grat.  405. 
>  Hayes  v.  Goode,  7  Leigh,  486. 

'"  Baker  v.  Read,  18  Beav.  398;  Emerick  v.  Emerick,  3  Grant,  295. 
»  Butler  V.  Haskell,  4  Des.  651;  Newman  v.  Early,  3  Tenn.  Ch.  714. 
"  Rhinlander  v.  Barrow,  17  Johns.  Ch.  538;  Mulhallen  v.  Manmi,  3  Dr. 
A  W.  315. 

"  BeU  V.  Webb,  2  GUI,  263;  Grieby  v.  Mousley,  4  De  G.  &  J.  78. 

"  Boone  v.  Chiles,  10  Pet.  177;  Trafford  v.  Wilkinson,  3  Tenn.  Ch.  701. 

388 


CHAP.  VI.]  LACHES.  [§  230. 

is  no  rule  in  equity  which  excludes  the  consideration  of  cir- 
cumstances, and  in  a  case  of  actual  fraud,  we  believe  no  case 
can  be  found  in  the  books  in  which  a  court  of  equity  has  refused 
to  give  relief  within  the  lifetime  of  either  of  the  parties  upon 
whom  the  fraud  is  proved,  or  within  thirty  years  after  it  has 
been  discovered  or  becomes  known  to  the  party  whose  rights 
are  affected  by  it."  ^  If  there  is  no  fraud  chargeable  on  any 
party,  but  a  simple  mistake  or  accident  is  made  by  which  a 
title  is  changed,  more  diligence  is  required,  and  acquiescence 
for  a  less  time  will  bar  the  suffering  party  of  his  relief.  An 
acquiescence  for  seventeen  years,^  or  for  nineteen  years,^  has 
been  held  to  be  fatal  to  an  application  for  relief.  But  where 
trustees  without  actual  fraud  conveyed  to  themselves,  a  sleep- 
ing on  their  rights  for  five  years  after  knowing  of  the  transac- 
tion was  held  not  to  bar  the  cestuis,  the  court  intimating  that 
where  no  conduct  of  the  cestuis  indicated  acquiescence,  mere 
delay  for  less  time  than  twenty  years  would  not  affect  them.* 
Where  there  are  two  remedies,  pursuing  one  first  and  waiting 
till  it  has  run  its  course  before  making  trial  of  the  other  is  not 
laches} 

§  230.  The  statute  of  limitations  is  not  necessarily  control- 
ling, as  to  the  time  within  which  relief  is  to  be  sought,  in  the 
case  of  a  constructive  trust  by  reason  of  fraud.    A  demand  may 

»  Michoud  V.  Girod,  4  How.  561;  Trevelyan  v.  Charter,  11  CI.  &  Fin. 
714;  Pym  v.  Byrne,  5  Ves.  681;  Maloney  v.  L'Estrange,  Beat.  406;  Car- 
penter V.  Canal  Co.,  35  Ohio  St.  307.  Lapse  of  time  is  no  bar  to  a  trust 
clearly  established;  and  in  cases  where  fraud  is  imputed  and  proved,  length 
of  time  ought  not,  upon  principles  of  eternal  justice,  to  be  admitted  to  re- 
pel rehef.  On  the  contrary,  it  would  seem  that  the  length  of  time  during 
which  the  fraud  has  been  successful  is  rather  an  aggravation,  and  calls  more 
loudly  for  decisive  and  ample  relief.  Per  Storj',  J.,  in  Prevost  v.  Gratz, 
6  Wheat.  481.  In  this  case  forty  years  and  the  death  of  all  the  parties  was 
held  sufficient  to  warrant  the  presumption  of  the  discharge  and  extinguish- 
ment of  a  trust,  proved  to  have  existed  by  strong  circumstances. 

^  Hite  V.  Hite,  1  B.  Mon.  177;  Emerick  v.  Emerick,  3  Grant,  295. 

»  Bruce  v.  Child,  4  Hawks,  372. 

*  Morse  v.  Hill,  136  Mass.  60,  66,  and  cases  cited. 

*  Blake  v.  Traders'  Nat'l  Bk.,  145  Mass.  13,  17. 

389 


§  230]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

be  stale,  and  not  entitled  to  relief  under  the  circumstances  of 
the  case,  although  much  less  than  the  time  allowed  by  the 
statute  of  limitations  has  elapsed;  and  so  a  party  may  be  en« 
titled  to  relief  although  much  more  than  the  statute  limit  has 
gone  by.^  In  some  States,  however,  the  statute  is  applied  to 
constructive  trusts,  unless  they  are  concealed  or  undiscovered. 
In  such  States,  relief  must  be  sought  within  six  years  if  it  is 
sought  by  bill  in  equity  to  set  aside  a  deed,  or  to  establish  a 
trust.^  In  Pennsylvania,  the  limit  is  five  years.'  In  other  States, 
it  has  been  decided  in  analogy  to  the  statute  which  bars  a  real 
action  after  twenty  years,  that  relief  must  be  sought  within 
the  twenty  years  named  in  the  statute.*  In  South  Carolina,  it 
is  held  that  an  action  to  set  aside  a  deed  as  fraudulent  is  equiv- 
alent to  an  action  for  deceit,  and  must  be  brought  within  the 
limit  of  the  statute  for  personal  actions.^  But  if  the  fraud  is 
unknown  to  the  injured  party,  or  is  concealed,  or  he  is  under 
disability,  or  out  of  the  country,  or  the  delay  is  caused  by  the 
defendant,^  the  lapse  of  time  will  not  be  laches  which  bar  relief. 


1  Mason  v.  Crosby,  1  Wood.  &  M.  342;  Piatt  v.  Vatier,  1  McLean,  146; 
9  Pet.  405;  Juzan  v.  Toulmin,  9  Ala.  662. 

*  Famham  v.  Brooks,  9  Pick.  212;  Sears  v.  Shafer,  2  Seld.  268;  Wil- 
liamson V.  Field,  2  Sandf.  Ch.  534;  PUcher  v.  Flinn,  30  Md.  202. 

s  Miller  v.  Franciscus,  40  Penn.  St.  335;  Rider  v.  Maul,  46  Penn.  St. 
376;  Ashurst,  App.  60  id.  290. 

*  Ward  V.  Van  Bokkelen,  1  Paige,  100;  Walker  v.  Walker,  16  Serg.  &  R. 
379;  Ferris  v.  Henderson,  12  Penn.  St.  54;  Bank  of  U.  S.  v.  Diddle,  2  Pars. 
Eq.  31;  Thompson  v.  Blair,  3  Murph.  593;  Farr  v.  Farr,  1  Hill,  Eq.  391; 
Perry  v.  Craig,  3  Miss.  525;  Field  v.  Wilson,  6  B.  Mon.  479;  Bruce  v.  Child, 
4  Hawks,  372;  McDowel  v.  Goldsmith,  2  Md.  Ch.  370. 

»  Parkam  v.  McCravy,  6  Rich.  Eq.  143;  McDonald  v.  May,  1  Rich. 
Eq.  91;  Bradley  v.  McBride,  Rich.  Eq.  Cas.  202,  is  overruled. 

«  Sears  v.  Shafer,  2  Seld.  268;  Richardson  v.  Jones,  3  G.  &  J.  163;  Dog- 
gett  V.  Emerson,  3  Story,  700;  Callender  v.  Calgrove,  17  Conn.  1;  Phalen 
V.  Clarke,  19  Conn.  421;  Hallett  v.  CoUins,  10  How.  174;  Rider  v.  Bickerton, 
3  Swanst.  81,  n.;  Blennerhassett  v.  Day,  2  B.  &  B.  118;  Trevelyan  v.  Charter, 
11  CI.  &  Fin.  714;  Bowen  v.  Evans,  2  H.  L.  Cas.  257;  Warner  r.  Daniel,  1 
W.  &  M.  Ill;  Murray  v.  Palmer,  2  Sch.  &  Lef.  487;  Aylewood  v.  Kearney, 
2  B.  &  B.  263;  Pickett  v.  Loggan,  14  Ves.  215;  Purcell  v.  McNamara,  id. 
91;  Ferris  v.  Henderson,  12  Penn.  St.  49;  Michoud  v.  Girod.  4  How.  661; 
Henry  County  v.  Winnebago,  &c.,  52  111.  299. 

390 


CHAP.  VI.]  LACHES.  [§  230. 

If  a  party  has  knowledge  of  the  fraud,  a  want  of  evidence  will 
not  excuse  his  delay, ^  nor  will  poverty  and  an  inability  to  pros- 
ecute the  action.^  If  there  has  been  great  delay,  courts  will 
require  very  clear  evidence  to  impeach  a  transaction  as  fraud- 
ulent, and  to  convert  the  fraudulent  party  into  a  trustee.' 
So,  if  a  great  length  of  time  has  elapsed,  courts  will  sometimes 
grant  the  relief  prayed  for  by  setting  aside  the  conveyance, 
but  will  decree  an  account  for  only  six  years,^  or  from  the  time 
of  filing  the  bill,^  and  without  costs.^ 

'  Parkam  v.  McCravy,  6  Rich.  Eq.  114. 

'  Roberts  v.  Tunstall,  4  Hare,  357;  Maxwell  t^.  Kennedy,  8  How.  210; 
Locke  V.  Armstrong,  2  Dev.  &  Bat.  147;  Perry  v.  Craig,  3  Miss.  516. 

»  Chalmers  v.  Bradley,  1  J.  &  W.  59;  Powell  v.  Murray,  10  Paige,  256; 
Bowen  v.  Evans,  2  H.  L.  Cas.  257;  Westbrook  v.  Harwell,  2  McCord,  Eq. 
112;  PhiUips  v.  Belden,  2  Edw.  Ch.  1;  Jennings  v.  Broughton,  3  De  G., 
M.  &  G.  126;  Chandos  v.  Brownlow,  2  Ridg.  P.  C.  397;  Montgomery 
V.  Hobson,  Meigs,  437;  Page  v.  Booth,  1  Rob.  161. 

*  Pearce  v.  Newlyn,  3  Madd.  189. 

'  Pickett  V.  Loggan,  14  Vee.  215;  Malony  v.  L'Estrange,  Beatt.  406; 
Mulballen  v.  Marum,  3  Dr.  &  W.  317. 

•  Pearce  v.  Newlyn,  3  Madd.  189;  Att.  Gen.  v.  Dudley,  Coop.  146. 


391 


§  231.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.     [CHAP.  VII. 


CHAPTER  VII. 

TRUSTS  THAT  ARISE   BY   EQUITABLE   CONSTRUCTION  IN  THE 
ABSENCE   OF   FRAUD. 

§  231.     Trust  by  equitable  construction.    Illustration. 

§  232.     Vendor's  lien  for  the  purchase-money  of  this  description.    States 

in  which  it  exists. 
§  233.  This  lien  does  not  contravene  the  statute  of  frauds. 

§  234.  The  nature  of  the  interest  of  the  vendor  under  this  lien. 

§§  235-237.      When  the  lien  exists  and  when  not. 
§§  238-239.     The  parties  between  whom  the  hen  exists. 
§  240.     Trust  by  construction  where  a  conveyance  is  made  that  cannot 

operate  at  law. 
§  241.     Constructive  trust  where  trust  property  is  transferred  by  gift 

from  the  trustee. 
§  242.     Constructive    trust  where  a  corporation  distributes  its  capital 

stock  without  paying  its  debts. 
§  243.     A  person  holding  the  legal  title  as  security  is  a  constructive 

trustee. 
§  244.     Executor  indebted  to  the  testator's  estate  is  a  constructive  trustee. 
§  245.     A  person  may  become  a  trustee  de  son  tort  by  construction. 
§  246.     An  agent  may  become  a  constructive  trustee. 
§  246a.  Other  equitable  trusts.    See  §  247  a. 

§  247.     A  person  holding  deeds  or  papers  or  property  belonging  to  another 
may  be  a  constructive  trustee. 

§  231.  It  frequently  happens  that  courts  of  equity  construe 
a  trust  to  arise  from  the  contracts  and  dealings  of  parties,  al- 
though a  trust  is  not  within  their  contemplation,  and  there  is 
no  fraud,  actual  or  constructive.  In  this  respect,  courts  of 
equity  proceed  in  a  manner  and  upon  principles  entirely  un- 
known to  courts  of  law.  Thus,  if  the  intention  of  the  testator 
cannot  be  carried  out  without  appointing  a  trustee,  that  will 
be  done.^  So,  if  parties  enter  into  a  valid  contract  for  the  sale 
and  conveyance  of  lands,  and  the  vendor  neglects  or  declines 

1  Quigley  v.  Gridley,  132  Mass.  39,  40. 

3^ 


CHAP.  VII.]    TRUSTS    BY    EQUIT.\BLE    CONSTRUCTION.  (§  231. 

to  convey,  courts  of  law  can  only  give  the  vendee  an  action  for 
damages  for  a  breach  of  the  contract,  but  the  legal  title  to  the 
property  will  not  be  affected;  it  will  still  remain  in  the  vendor. 
A  court  of  equity,  however,  looks  upon  that  as  already  done, 
which  was  agreed  to  be  done.^  From  the  date  of  the  contract  it 
looks  upon  the  beneficial  interest  as  in  the  vendee,  and  the  legal 
title  only  as  in  the  vendor.  By  construction  the  vendor  holds 
the  legal  title  in  trust  for  the  vendee.^  (a)  Equity  proceeds,  in 
personam,  against  the  vendor  amd  makes  him  a  trustee,  and  then 
orders  him  to  execute  the  trust  by  conveying  the  legal  title  to 
the  person  to  whom  he  has  agreed  to  convey  it.  The  purchaser 
is  in  like  manner  a  trustee  of  the  purchase-money,  and  the 
court  will  order  him  to  pay  it  over,  and  receive  a  conveyance 
of  the  legal  title  to  the  land.^  And,  a  fortiori,  if  the  purchaser 
has  paid  the  purchase-money  the  vendor  becomes  a  mere  trustee 
of  the  legal  title  for  the  purchaser;^  so,  if  the  purchaser  has 
paid  part  of  the  purchase-money,  the  vendor  becomes  a  trustee 

1  Fonbl.  Eq.  Tr.  B.  1,  c.  6,  §  8. 

2  Wall  V.  Bright,  1  J.  &  W.  500;  Green  v.  Smith,  1  Atk.  572;  Davie 
V.  Beardsham,  1  Ch.  Gas.  39;  Atcherley  v.  Vernon,  10  Mod.  518;  McKay  v. 
Carrington,  1  McLean,  50;  Crawford  v.  Bertholf,  Saxt.  458;  Ten  Eyck  v. 
Simpson,  1  Sandf.  Gh.  244;  Kerr  v.  Day,  14  Penn.  St.  112;  Moore  v.  Burrows, 
34  Barb.  173;  Adams  v.  Green,  id.  176;  Wickman  v.  Robinson,  14  Wis.  493; 
Conway  v.  Kinsworthy,  21  Ark.  9;  Dana  v.  Petersham,  107  Mass.  598; 
Currie  i-.  White,  45  N.  Y.  822;  Reed  r.  Lukens,  44  Penn.  St.  200;  Lamb  v. 
Davenport,  1  Sawyer,  609;  Potter  v.  Jacobs,  111  Mass.  32.  [  Stubbs  v. 
Pitts,  84  Ark.  160;  First  Nat.  Bank  v.  Edgar,  65  Neb.  340;  Atteberry 
V.  Burnett,  113  S.  W.  526  (Tex.  1908).] 

3  Green  v.  Smith,  1  Atk.  572;  Pollexfen  v.  Moore,  3  Atk.  272;  Dexter 
V.  Stewart,  7  Johns.  Ch.  52. 

*  Waddington  v.  Banks,  1  Brock.  97;  Fenno  v.  Sayre,  3  Ala.  458;  Brown 
V.  East,  5  Mon.  415;  Payne  v.  Atterbury,  Harring.  Ch.  414;  Neeson  v. 
Clarkson,  4  Hare,  97.  [  Scadden  Flat  Gold  Mining  Co.  v.  Scadden,  121 
Cal.  33.] 

(a)  Thus  where  the  vendor  after  Marvin  v.  Bemheimer,  77  N.  Y.  S. 
an  executory  contract  to  soil  con-  915.  The  equitable  interest  of  the 
veyed  and  released  to  a  third  person  vendee  of  such  an  executory  con- 
certain  easements  appurtenant  to  tract  descends  to  his  heirs.  Cutler 
the  land,  the  vendee  under  the  con-  v.  Meeker,  71  Neb.  732. 
tract   is  entitled   to   the   proceede. 

393 


§  232.]  TRUSTS   BY   EQUITABLE    CONSTRUCTION.     [CHAP.  VII. 

to  the  extent  of  the  money  paid.^  If  the  vendor  does  not  own 
the  land,  or  some  part  of  that  which  he  agrees  to  convey,  and 
afterwards  obtains  the  title,  he  will  immediately  become  a 
trustee  for  the  purchaser.^  This  equity  will  not  be  affected  by 
the  death  or  bankruptcy  of  either  party.  If  the  vendor  dies 
before  he  has  conveyed  the  land,  the  legal  title  will  descend  to 
his  heirs  subject  to  the  trust;  and  they  or  his  legal  representa- 
tives will  be  ordered  to  execute  the  trust.^  But  the  lien  or 
trust  will  not  exist  where  the  purchaser  by  his  own  fault  aban- 
dons the  contract,*  or  where  the  contract  is  for  any  cause 
illegal.^  If  the  purchaser  abandons  the  contract  because  the 
vendor  cannot  fulfil  it  as  agreed  upon,  as  if  it  is  to  give  a  good 
title,  the  trust  or  lien  will  not  continue.^  Wherever  one  wrong- 
fully obtains  the  legal  title  to  land  which  in  equity  and  good 
conscience  belongs  to  another,  equity  will  raise  a  constructive 
trust.'^  (o) 

§  232.  Similar  to  this  is  the  constructive  lien  or  trust  in 
favor  of  a  vendor  for  his  unpaid  purchase-money;  for  the 
vendor  of  land  has  a  lien  on  the  land  for  the  amount  of  the 
purchase-money,  not  only  against  the  vendee  himself  and  his 

»  Wythes  v.  Lee,  3  Drew.  396;  Westmacott  v.  Robins,  4  De  G.,  F.  &  J. 
390. 

«  Tyson  v.  Passmore,  2  Barr,  122;  McCall  v.  Coover,  4  Watts  &  S.  151. 

»  Paul  V.  Wilkins,  Toth.  106;  Barker  v.  Hill,  2  Ch.  R.  113;  Winged  v. 
Lefebury,  2  Eq.  Gas.  Ab.  32,  pr.  43;  Orlebar  v.  Fletcher,  1  P.  Wms.  737; 
Bowles  V.  Bowles,  6  Ves.  95,  n.;  Whitworth  v.  Davis,  V.  &  B.  545;  Tieman 
V.  Roland,  15  Penn.  St.  429;  Rutherford  v.  Green,  2  Ired.  Eq.  121;  Jacobs 
V.  Lake,  id.  286;  Newton  v.  Swazey,  8  N.  H.  9;  Glaze  v.  Drayton,  1  Dev. 
109.  In  Massachusetts,  the  probate  court  or  the  supreme  judicial  court 
may  authorize  the  executor  or  administrator,  or  the  guardian  of  an  insane 
person,  to  convey  in  such  cases.    Public  Stat.  1882. 

*  Dinn  v.  Grant,  5  De  G.  &  Sm.  451. 

«  Ewing  V.  Osbaldiston,  2  My.  &  Cr.  88. 

•  Wythes  v.  Lee,  3  Drew.  396. 

'  Lakin  v.  S.  B.  M.  Co.,  11  Sawy.  (U.  S.)  231. 

(a)  Thus     one    who    purchases     latter's  equity.    Handy  v.  Rice,  98 
with  knowledge  that  another  has  a     Me.  504. 
bond  for  title  takes  subject  to  the 

394 


CHAP.  VII.]  vendor's  lien.  [§  232, 

heirs  and  other  privies  in  estate,  but  also  against  all  subse- 
quent purchasers  having  notice  that  the  purchase-money  re- 
mains unpaid.  To  the  extent  of  the  lien,  the  vendee  becomes 
a  trustee  for  the  vendor;  and  the  vendee's  heirs,  and  all  other 
persons  claiming  under  him  or  them  with  notice,  are  construed 
by  courts  of  equity  to  be  trustees.  This  doctrine  is  well  estab- 
lished in  the  jurisprudence  of  England,^  and  it  has  been  recog- 
nized, and  acted  upon,  in  many  of  the  United  States.^    The 

>  See  Mackreth  v.  Symmons,  15  Ves.  329,  where  Lord  Eldon  cited  and 
commented  upon  all  the  cases  previous  to  that  time.  See  s.  c.  1  Lead. 
Cas.  Eq.  336,  where  the  later  English  cases  are  quoted,  and  also  the  Ameri- 
can cases.  Lemon  v.  Wliiteley,  4  Rus.423;  Chapman  v.  Tanner,  1  Vem.  267; 
Blackburn  v.  Gregson,  1  Bro.  Ch.  420;  Burgess  v.  WTieat,  1  Eden,  211; 
1  W.  Black.  150.    [  See  Davies  v.  Thomas,  (1900)  2  Ch.  462,  467.] 

*  In  Maine  the  doctrine  is  entirely  rejected  as  inconsistent  with  the 
registry  laws  and  poUcy  of  the  State:  Philbrook  v.  Delano,  29  Maine,  415. 
In  New  Hampshire  the  court  has  left  it  undecided:  Arlin  v.  Brown,  44 
N.  H.  102,  and  see  Buntin  v.  French,  16  N.  H.  592.  In  Vermont  the  doc- 
trine was  estabhshed  in  an  able  judgment  by  Ch.  J.  Redfield:  Manly  t'. 
Slason,  21  Vt.  271,  but  abolished  by  Stat.  1851.  In  Massachusetts  it  is 
rejected :  Ahrend  v.  Odiome,  118  Mass.  261 .  In  Connecticut  it  is  undecided : 
Atwood  V.  Vincent,  17  Conn.  575.  See  Watson  v.  Wells,  5  Conn.  468;  Dean 
V.  Dean,  6  Conn.  285;  Meigs  v.  Dimock,  id.  458;  Chapman  v.  Beardsley,  31 
Conn.  1 15.  In  Rhode  Island  it  is  recognized :  Kent,  Adm'r,  v.  Gerhard  et  ux., 
12  R.  I.  92.  [  Smith  Granite  Co.  v.  Newall,  22  R.  I.  220.]  In  New  York  it  is 
well  established:  Stafford  v.  Van  Renselaer,  9  Cow.  316;  Garson  v.  Green,  1 
Johns.  Ch.  308;  White  v.  Williams,  1  Paige,  Ch.  502;  Fish  v.  Rowland,  id. 
20;  Warner  f;.  Van  Alstyne,  3  id.  513;  Shirley  v.  Sugar  Ref.,  2  Edw.  Ch.  505; 
Dubois  V.  Hall,  43  Barb.  26;  Warren  v.  Fenn,  28  id.  333;  Champion  v.  Brown, 
6  Johns.  402.  [  Bach  v.  Kidansky,  186  N.  Y.  368;  Hubbell  v.  Hendrickson, 
175  N.  Y.  175,  178.]  In  New  Jersey,  also:  Vandoren  v.  Todd,  2  Green,  Ch. 
397;  Brinkerhoff  v.  Vansciven,  3  id.  251;  Herbert  v.  Scofield,  1  Stockt.  Ch. 
492.  [Harter  v.  Capital  City  Brewing  Co.,  64  N.  J.  Eq.  155;  Morgan  v. 
Dalrymple,  60  N.  J.  Eq.  466.]  In  Pennsylvania  the  doctrine  is  rejected, 
though  there  may  be  such  a  conditional  title  conveyed,  as  will  give  the  ven- 
dor a  preference  for  the  purchase-money  over  all  others  claiming  under  the 
vendee:  Irvine  v.  Campbell,  6  Binn.  118;  Stouffer  v.  Coleman,  1  Yeates,  393; 
Kauffelti'.Bower,7Serg.  &  R.  64;  Sempler.Burd,id.  286;  Bean-.  Whi8ler,7 
Watts,  147;  Zentmyer  v.  Miltower,  5  Penn.  St.  403;  Stephen's  App.,  38 
id.  9;  Springer  v.  Walters,  34  id.  328;  Hepburn  v.  Snyder,  3  id.  72;  Megargel 
V.  Saul,  3  Whar.  19;  Cook  i;.  Trimble,  9  Watta,  15;  Heist  t;.  Baker,  49  Penn. 
St.  9;  Straus's  App.,  id.  353.  In  Delaware  the  point  is  undecided:  Budd 
V.  Basti,  1  Harr.  69.    In  Maryland  it  is  well  established:  White  v.  Caaanave, 

395 


§  232.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.     [CHAP.  VII. 

principle  upon  which  the  lien  depends  is  this:  that  a  person 
who  has  obtained  the  estate  of  another  ought  not,  in  conscience, 

1  Har.  &  J.  106;  Ghiselin  v.  Ferguson,  4  Har.  &  J.  522;  Pratt  v.  Van  Wyck, 
6  id.  495;  Magruder  v.  Peter,  11  id.  217;  Repp  v.  Repp,  12  id.  341;  Moreton 
V.  Harrison,  1  Bland,  Ch.  491;  Carri;.  Hobbs,  11  Md.  285;  Hummer  t;.  Schott, 
21  Md.  307;  Hall  v.  Jones,  id.  439;  Bratt  v.  Bratt,  id.  578.  In  Virginia  it 
was  long  acted  upon:  Graves  v.  McCall,  1  Call,  414;  Handley  v.  Lyons,  5 
Munf.  342;  Duvall  v.  Bibb,  4  Hen.  &  M.  113;  Hatcher  v.  Hatcher,  1  Rand. 
53;  Redford  v.  Gibson,  12  Leigh,  332.  But  it  is  now  abolished  by  the  code: 
Yancy  v.  Manck,  15  Grat.  300;  Hempfield  R.  R.  Co.  v.  Thombury,  4  W. 
Va.  261.  [  Va.  Code,  (1904),  §  2474.  Also  in  West  Virginia  Code  (1906) 
ch.  75,  §  3110;  Board  v.  Wilson,  34  W.  Va.  609,  617;  Scraggs  v.  Hill,  43  W. 
Va.  162.]  In  North  Carolina,  after  being  acted  upon  for  some  time,  it  was 
overruled:  Cameron  v.  Mason,  7  Ired.  Eq.  ISO;  Gabee  v.  Sneed,  1  Dev.  & 
B.  333;  Wamble  v.  Battle,  3  Ired.  Eq.  182;  Henderson  v.  Burton,  id.  259. 
In  South  Carolina  it  was  never  acted  upon:    Wragg  v.  Comptroller-Gen. 

2  Des.  509.  In  Georgia  it  is  acted  upon :  Marine  Fire  Ins.  Co.  v.  Early,  Charl. 
279;  Hampden  v.  Miller,  Dud.  120;  Moimce  v.  Byars,  16  Ga.  469;  Chance  v. 
McWharter,  26  Ga.  315;  Stile  v.  Griffin,  27  Ga.  504;  Mims  v.  Lockett, 
23  Ga.  237;  Mims  v.  Macon  and  Western  Railroad,  3  Kelly,  333.  [But 
has  been  abolished  by  statute,  Ga.  Code  (1895),  §  2823.]  Also  in  Florida: 
Woods  V.  Bailey,  3  Fla.  41.  [  McKinnon  v.  Johnson,  54  Fla.  538;  Rewis 
V.  Williamson,  51  Fla.  529.]  And  so  in  Alabama:  Bums  v.  Taylor,  23  Ala. 
255;  Haley  v.  Bennett,  5  Porter,  452;  Roper  v.  McCook,  7  Ala.  318;  Griffin 
V.  Camack,  36  Ala.  695.  [Hood  v.  Hammond,  1  28  Ala. 569,  576.]  So  in 
Mississippi:  Trotter  v.  Erwin,  27  Miss.  772;  Stewart  v.  Ives,  1  Sm.  &  M. 
197;  Tanner  v.  Hicks,  4  id.  294;  Upshaw  v.  Hargrave,  6  id.  286;  Dunlop  v. 
Burnett,  5  id.  702;  Servis  v.  Beatty,  32  Miss.  52.  [  Matthews  v.  Delta,  etc., 
R.  R.  Co.,  90  Miss.  429.]  It  is  established  in  Texas:  Pinchain  v.  Collard, 
13  Tex.  333;  Wheeler  v.  Lane,  21  Tex.  583;  McAlpin  v.  Burnett,  23  Tex.  649. 
So  in  Arkansas:  English  v.  Russell,  Hemp.  35;  Scott  v.  Orbinson,  2  Ark. 
202;  Shall  v.  Biscoe,  18  Ark.  142.  So  in  Missouri;  Marsh  v.  Tumer,4  Mo.  53; 
McKnight  v.  Brady,  2  Mo.  110;  Davis  v.  Lamb,  30  Mo.  441;  Bledsoe  v. 
Games,  id.  448;  Delassus  v.  Poston,  19  Mo.  425.  [  Dickason  v.  Fisher,  137 
Mo.  342.]  So  in  Tennessee:  Brown  v.  Vanlier,  7  Humph.  239;  Eskridge  v. 
McClure,  2  Yerg.  84;  Marshall  v.  Christmas,  3  Humph.  616;  Campbell  v. 
Baldwin,  2  Humph.  248;  Uzzell  v.  Mack,  4  Humph.  319;  Medley  v.  Davis, 
5  Humph.  387;  Norvell  v.  Johnson,  id.  489;  Taylor  v.  Hunter,  id.  569. 
[Electric  Light  Co.  v.  Gas  Co.,  99  Tenn.  371,  376.]  So  in  Kentucky: 
Muir  V.  Cross,  10  B.  Mon.  277;  Fowler  v.  Rust,  2  A.  K.  Marsh.  294;  Taylor 
V.  Alloway,  2  Litt.  216;  Mosely  v.  Garrett,  1  J.  J.  Marsh.  212;  Richardson 
V.  Baker,  5  id.  323;  Cox  v.  Fenwick,  3  Bibb,  183.  [See  Ky.  Stats.  1909, 
§  2053.]  So  in  Ohio:  Williams  v.  Roberts,  5  Ohio,  35;  Tiernant;.  Bean,  2  Ham. 
383;  Magham  v.  Coombs,  14  Ohio,  428;  Neil  v.  Kinney,  11  Ohio  St.  58. 
I  Campbell  v.  Sidwell,  61  Ohio  St.  179,  186.]    So  in  Indiana:  McCarty  v. 

396 


CHAP,  vii.l  vendor's  lien.  [§  232. 

to  keep  it,  and  not  pay  the  consideration-money  in  full;  and  a 
third  person,  who  receives  the  estate  with  full  knowledge  that 
it  has  not  been  paid  for,  ought  not,  as  a  matter  of  equity,  to  be 
allowed  to  keep  it  without  paying  for  it.^  It  will  at  once  be 
seen,  that,  as  between  the  parties,  this  lien  is  founded  in  natural 
justice.^  The  civil  law  gave  a  lien  on  both  real  and  personal 
property  to  the  vendor  for  the  purchase-money,  and  the  prin- 
ciple was  early  introduced  into  English  equity,  as  to  real  estate.' 

Pruet, 4 Ind. 46; Lagow  v.  Badollet,  1  Blackf .  416; Evans «;.  Goodlett,  id.  246; 
Merritt  v.  Wiles,  18  Ind.  171 ;  Cox  v.  Wood,  20  Ind.  54.  f  Ballard  v.  Camplin, 
161  Ind.  16.]  So  in  Illinois:  Trustees  v.  Wright,  11  111.  603.  [  Ross  v.  Clark, 
225  III.  326;  Koch  v.  Roth,  150  111.  212,  219.]  So  in  Michigan:  Sears  v. 
Smith,  2  Mich.  243;  Carroll  v.  Van  Renselaer,  Harring.  Ch.  225.  [Shaw  v. 
Tabor,  146  Mich.  544;  Lyonr.  Clark,  132  Mich.  521.]  Also  in  Iowa:  Pierson 
V.  David,  1  Iowa,  23;  Rakestraw  v.  Hamilton,  14  Iowa,  147;  Patterson  v. 
Linder,  id.  414;  Tupple  v.  Viers,  id.  515;  Grapengether  v.  Fejervary,  9  Iowa, 
163;  Hays  v.  Horine,  12  Iowa,  61.  [See  Code  of  Iowa,  (1897)  §  2924; 
Fisher  v.  Shropshire,  147  U.  S.  133.]  So  in  Wisconsin:  Toby  t;.  McAUister, 
9  Wis.  463.  [  Halvorsen  v.  Halvorsen,  120  Wis.  52;  Berger  v.  Bcrger,  104 
Wis.  282.]  Also  in  Minnesota:  Daughaday  v.  Payne,  6  Minn.  443.  In 
Kansas  there  is  no  lien:  Simpson  v.  Munder,  3  Kans.  172.  And  so  in  Neb- 
raska: Edminster  v.  Higgins,  6  Neb.  265.  [  Ansley  i'.  Pasahro,  22  Neb. 
662.  ]  The  lien  exists  in  Cahf ornia :  Truebody  v.  Jacobson,  2  Cal.  269 ;  Taylor 
V.  McKinney,  20  Cal.  618;  Baum  v.  Grigsby,  21  Cal.  172;  Sparks  v.  Hess, 
15  Cal.  186;  Walker  v.  Sedgwick,  8  Cal.  398;  Cahoon  v.  Robinson,  6  Cal. 
225;  Salmon  v.  Hoffman,  2  Cal.  138;  Burtt  v.  Wilson,  28  Cal.  632.  [  Selna 
V.  Selna,  125  Cal.  357.]  The  same  doctrine  is  held  in  the  courts  of  the  United 
States:  Chilton  v.  Braiden,  2  Black,  458;  Gilman  v.  Brown,  1  Mason,  191;  4 
Wheat.  255;  Bayley  v.  Greenleaf,  7  Wheat.  46;  Bush  v.  Marshall,  6  How. 
284;  Galloway  v.  Finley,  12  Pet.  264;  McLearn  v.  McLellan,  10  Pet.  640; 
Cole  V.  Scott,  2  Wash.  141.  [Slide  &  Spur  Gold  Mines  i;.  Seymour,  153 
U.  S.  509.]  (a) 

I  Hughes  V.  Kearney,  1  Sch.  &  Lef.  135;  Chilton  t'.  Braiden,  2  Black.  9 
458. 

*  Inst.  Lib.  2,  tit.  1,  §  41;  Blackburn  t^.  Grcgson,  1  Cox,  100;  Chapman 
V.  Tanner,  1  Vem.  267. 

'  Mackreth  v.  Symmons,  15  Ves.  337;  Dig.  Lib.  18,  tit.  1,  c.  19,  22,  53; 
Domat,  B.  3,  tit.  1,  §  5,  art.  4. 

(a)   See  also  Rhodes  v.  Arthur,  19  v.   Kidston,   2    Alaska,    292;  or    in 

Okla.  520.      The  lien  is  not  recog-  Arizona,  Baker  v.   Fleming,  6  Ariz, 

nized  in  Oregon,  Frame  v.  Sliter,  29  418. 
Or.  121;  or  in  Alaska,  Lindbloom 

397 


§  233.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.     [CHAP.  VII. 

Courts  administer  the  equity  by  converting  the  purchaser  into 
a  trustee.^  They,  in  effect,  say,  that  if  one  conveys  his  land 
and  takes  no  security  for  the  purchase-money,  the  purchaser 
shall  be  a  trustee  of  the  land  for  the  vendor  until  it  is  paid.^ 

§  233.  It  has  been  objected  that  the  creation  of  this  lien  or 
trvist  by  courts  of  equity  is  a  repeal  of  the  statute  of  frauds.  It 
is  answered,  that  the  raising  of  such  a  trust  is  no  more  in  contra- 
vention of  the  statute  than  the  creation  of  any  other  resulting 
or  constructive  trust  by  operation  of  law  upon  the  acts  and 
contracts  of  parties,  where  they  do  not  contemplate  or  intend  a 
trust.^  It  is  further  objected,  in  the  United  States,  that  the 
raising  of  such  trusts  is  contrary  to  the  policy  of  the  registry 
laws  which  require  all  deeds  and  liens  to  be  matter  of  record.^ 
But,  as  between  the  parties,  the  raising  of  a  trust  to  secure  the 
purchase-money  is  no  more  against  the  policy  of  the  registry 
laws  than  is  the  raising  of  a  resulting  trust  to  secure  the  actual 
purchaser,  where  the  deed  is  taken  in  the  name  of  another,  or 
the  raising  of  a  constructive  trust  where  one  man  has  defrauded 
another  of  his  title.  In  either  case  there  is  a  secret  trust  that 
does  not  appear  upon  the  records  of  the  registry.  So,  as  against 
third  persons  who  take  the  land  wnth  notice  that  the  purchase- 
money  is  unpaid,  the  policy  of  the  registry  laws  applies  in  the 
same  manner  that  it  applies  to  other  unrecorded  deeds  or 
liens.^  Thus,  if  a  second  purchaser  or  mortgagee  has  notice  of 
a  prior  sale  or  mortgage  for  a  valuable  consideration,  he  cannot, 
by  putting  his  deed  or  mortgage  first  on  record,  deprive  the 
prior  purchaser  or  mortgagee  of  his  title  or  security.®  It  is, 
however,  true  that  many  courts  have  looked  upon  this  trust 
with  disfavor,  although  they  have  recognized  its  existence,^  and 

»  Ibid.;  Blackburn  v.  Gregson,  1  Bro.  Ch.  420;  Walker,  Am.  Law,  316. 

»  Ibid. 

»  Mackreth  v.  Symmons,  15  Ves.  329;  Manly  v.  Slason,  15  Vt.  271. 

•  Philbrook  v.  Delano,  29  Maine,  415. 

•  Manly  v.  Slason,  21  Vt.  271. 

•  Bayley  v.  Greenleaf,  7  Wheat.  51;  Conover  v.  Warren,  1  Gil.  502; 
Brawley  v.  Catron,  8  Leigh,  527;  Moore  v.  Halcombe,  3  Leigh,  600. 

^  Vermont  and  Virigina,  ut  sup.    [  Rosa  i;.  Clark,  225  111.  326,  330.] 

398 


CHAP.  VII.]  vendor's  lien.  (§  234. 

some  States  have  formally  abolished  it  by  statute.*  While 
other  courts  deem  it  highly  equitable,  and  eminently  consist- 
ent with  the  most  perfect  ideas  of  moral  justice.^ 

§  234.  In  most  cases  the  cestui  que  trust  has  an  equitable 
estate  in  the  land  to  which  his  trust  attaches,  an  estate  which 
he  may  sell,  assign,  or  devise;  but  a  vendor  having  only  a  lien 
for  his  purchase-money,  has  no  estate  in  the  land.  It  is  neither 
jus  in  re  nor  jus  ad  rem.  It  is  the  mere  possibility  of  a  right, 
until  it  is  established  by  a  final  decree  of  a  court  in  each  case.*  (a) 
It  is  not  a  direct  trust  in  the  land  itself,  but  a  collateral  trust 
for  the  security  of  the  debt.  It  is  in  fact  a  remedy  for  a  debt, 
and  not  a  right  of  property.  It  follows,  that  the  remedy  can 
be  enforced  only  so  long  as  the  debt  can  be  enforced ;  that  where 
an  action  for  the  purchase-money  is  gone,  the  right  to  enforce 
the  lien,  or  the  lien  itself,  is  gone  also.  This  lien  or  trust  con- 
tinues so  long  as  the  purchase-money  remains  unpaid,  or  so 
long  as  an  action  can  be  maintained  for  its  collection.  If  the 
action  is  barred  by  the  statute  of  limitations,  the  remedy  to 
enforce  the  lien  is  gone  also.^  In  this  respect  the  vendor's  lien 
differs  from  a  mortgage,  which  may  be  enforced  against  the 
land  after  all  right  to  enforce  the  debt  against  the  mortgagor 

•  Ibid. 

'  Manly  v.  Slason,  21  Vt.  278. 

'  Oilman  v.  Brown,  1  Mason,  21;  1  Lead.  Caa.  in  Eq.  272-275;  Williams 
V.  Young,  17  Cal.  403;  21  Cal.  227.  [  Halvorsen  v.  Halvorsen,  120  Wis. 
52,  56.] 

*  Borst  V.  Corey,  15  N.  Y.  505;  Sheratz  v.  Nicodemus,  7  Yerg.  9;  Trotter 
V.  Erwin,  27  Miss.  772;  Addams  v.  Hefferman,  9  Watts,  530;  Alexander 
V.  McMurray,  8  Watts,  504.  But  in  Maryland  it  was  held  to  be  a  direct 
trust  and  property  in  the  land,  like  a  mortgage,  which  could  be  enforced 
after  the  personal  obUgation  of  the  vendee  was  gone.  Moreton  v.  Harrison, 
1  Bland,  491;  Lingan  v.  Henderson,  id.  236.  And  see  Relfe  i'.  Relfe,  34 
Ala.  500.  [  It  is  held  in  Alabama  that  the  vendor's  lien  is  preserved  though 
the  statute  of  limitations  has  operated  to  bar  the  recovery  of  the  purchase- 
money  aa  a  debt.  Hood  v.  Hammond,  128  Ala.  569,  578,  and  cases  there 
cited.] 

(a)  The  lien  is  joint  when  differ-  an  entire  price.  Brisco  v.  Minah 
ent  vendors  join  in  one  contract  for     C.  M.  Co.,  82  F.  R.  952;  89  id.  891. 

399 


§  235.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.    [CHAP.  VII. 

is  barred  by  the  statute  of  limitations,  or  by  his  discharge  in 
bankruptcy,  (a)  If  a  cestui  que  trust  conveys  his  equitable 
estate  in  land,  he  will  have  the  same  lien  upon  it  for  the  pur- 
chase-money as  in  the  case  of  a  legal  estate.^ 

§  235.  The  lien  exists,  notwithstanding  the  deed  recites  ^  or 
acknowledges  ^  that  the  consideration  is  paid,  and  notwith- 
standing a  receipt  of  the  payment  is  indorsed  upon  the  back 
of  the  deed,^  if  in  fact  it  is  not  paid.  (6)  And  if  the  considera- 
tion is  not  to  be  paid  until  after  the  death  of  the  grantor,  and 
then  only  upon  a  contingency,  as  if  no  claim  for  dower  is  made 
in  the  mean  time,  the  lien  will  arise;  ^  but  if  the  consideration 
of  the  sale  is  something  other  than  money,  as  if  the  vendor  makes 
the  sale  for  the  consideration  of  his  future  support,  no  lien  will 
arise;  ^  nor  if  in  consideration  that  his  debts  are  paid;^  nor  if  the 

*  Iglehart  v.  Armiger,  1  Bland,  519;  Galloway  v.  Hamilton,  1  Dana, 
576;  Lignon  v.  Alexander,  7  J.  J.  Marsh.  288;  Stewart  v.  Hatton,  3  id.  178. 
But  see  Bayley  v.  Greenleaf,  7  Wheat.  46;  Schnebly  v.  Ragan,  7  Gill  &  J. 
120.    [  Board  v.  Wilson,  34  W.  Va.  609,  617.] 

2  Thornton  v.  Knox,  6  B.  Mon.  74;  Mackreth  v.  Symmons,  15  Ves.  337; 
Hughes  V.  Kearney,  1  Sch.  &  Lef.  135;  Winter  v.  Anson,  3  Ruas.  488;  1  Sim. 
&  S.  434;  Saunders  v.  Leslie,  2  B.  &  B.  514.  [  Halvorsen  v.  Halvorsen,  120 
Wis.  52;  Coppage  v.  Murphy,  68  S.  W.  416  (Ky.  1902);  Cecil  v.  Henry,  93 
S.  W.  216  (Tex.  Civ.  App.  1906);  Zwingle  v.  Wilkinson,  94  Tenn.  246; 
Chastain  v.  Hames,  124  Ala.  618.] 

'  Gilman  v.  Brown,  1  Mason,  C.  C.  214;  Sheratz  v.  Nicodemus,  7  Yerg. 
9;  Ewbank  v.  Boston,  5  Mon.  287;  Redford  v.  Gibson,  12  Leigh,  344;  Tribble 
V.  Oldham,  5  J.  J.  Marsh.  144. 

*  Ibid. 

'  Redford  v.  Catron,  8  Leigh,  528. 

6  Arlin  v.  Brown,  44  N.  H.  105;  McCandlish  v.  Keen,  13  Grat.  615; 
Brawley  v.  Catron,  8  Leigh,  528;  McKillip  v.  McKillip,  8  Barb.  552.  [  Peters 
V.  Tunell,  43  Minn.  473.] 

^  Chapman  v.  Beardley,  3  Conn.  115. 

(a)  But  a  lien  expressly  reserved  (b)  The  lien  exists  for  the  actual 

in  the  deed  is  treated  as  a  mortgage,  consideration  notwithstanding  that 

Smith  V.  Butler,  72  Ark.  350;  Fry-  the  deed  recites  a  different  consid- 

berger  y.  Berven,  88  Minn.  311,  315;  eration.      Matthews   v.  Delta,  etc., 

Elmendorf  v.  Beime,  4  Tex.   Civ.  R.  Co.,  90  Miss.  429. 
App.  188;  Gordon  v.  Johnson,  186 
lU.  18. 

400 


CHAP.  vii.J  vendor's  lien.  [§  236. 

amount  of  the  consideration  is  uncertain  and  unliquidated.' 
Nor  if  it  appears  that  the  consideration  is  that  the  vendee 
shall  enter  into  covenants  to  do  certain  things.^  If  a  note  or 
bond  is  taken  for  the  consideration,  and  includes  anything  other 
than  the  price  of  the  land  sold,  the  lien  will  not  attach.^ 

§  236.  Where  a  vendor  takes  security  for  the  purchase- 
money,  it  is  often  a  difficult  question  to  determine  whether  he 
has  thereby  abandoned  or  waived  his  lien.  Much  of  the  liti- 
gation upon  vendor's  liens  has  arisen  over  this  question,  — 
whether  the  lien  was  abandoned  or  not  by  the  parties.  Of 
course,  it  is  a  pure  question  of  fact  or  intention.  By  the  civil 
law,  the  taking  of  any  kind  of  security  w^as  an  abandonment  of 
the  lien  upon  the  property;  this  rule  has  not  prevailed  in  Eng- 
land. The  rule  in  England  is,  that  prima  facie  the  vendor  has  a 
lien  for  the  purchase-money:  the  presumption  in  favor  of  this 
lien  continues  until  it  is  displaced  by  satisfactory  evidence  that 
the  lien  has  been  abandoned  or  extinguished.  The  burden  is 
on  the  vendee  to  repel  the  presumption.  The  taking  of  security 
by  the  vendor  is  evidence  upon  that  question,  more  or  less  sat- 
isfactory according  to  the  nature  of  the  security  taken  and  the 
circumstances  under  which  it  is  taken. ^  It  has  been  held  that 
the  taking  of  a  mortgage  on  another  estate  was  not  conclusive 


»  Ibid.  [  Harter  v.  Capital  City  Brewing  Co.,  64  N.  J.  Eq.  155;  Warner 
V.  Bliven,  127  Mich.  665;  Ross  v.  Clark,  225  111.  326.  But  see  Halvorsen  t;. 
Halvorsen,  120  Wis.  52.  See  also  Rhodes  v.  Arthur,  19  Okla.  520;  Leak 
V.  Williams'  Adm'r,  99  S.  W.  630  (Ky.  1907);  Neil  v.  Rosenthal,  105  N.  Y. 
S.  681,  120  App.  Div.  810.] 

2  Buckland  v.  Pocknell,  13  Sim.  406;  Dixon  t-.  Gayfere,  17  Beav.  421; 
21  Beav.  118;  Clarke  v.  Boyce,  3  Sim.  499;  Parrott  «;.  Sweetland,  3  My.  & 
K.  655.  [  Whiteley  v.  Central  Trust  Co.,  76  Fed.  74.]  In  Alabama  the 
lien  was  held  to  arise  in  case  of  an  exchange  of  lands.  Burns  v.  Taylor,  23 
Ala.  255. 

»  McCandlish  v.  Keen,  13  Grat.  605;  James  v.  Bird,  8  Leigh,  51. 

*  Nairn  v.  Prowse,  6  Ves.  759;  Mackreth  v.  Symmons,  17  Ves.  342; 
Garson  v.  Green,  1  Johns.  Ch.  308;  Lewis  v.  Caperton,  8  Grat.  148;  Plow- 
man V.  Riddle,  14  Ala.  169;  Hughes  v.  Kearney,  1  Sch.  &  Lef.  136;  Saunders 
V.  Leslie,  2  B.  &  B.  514;  Bradford  v.  Marvin,  2  Fla.  463. 

VOL.1.  — 26  401 


§  237.]  TRUSTS    BY   EQUITABLE    CONSTRUCTION.    [CHAP.  VII. 

evidence  that  the  lien  was  abandoned ;  ^  and  so,  bills  or  notes 
indorsed  by  third  persons,  or  bonds  with  a  surety,  are  not 
necessarily  conclusive  evidence  that  the  vendor  in  taking  them 
waives  his  lien.^  It  may  be,  in  such  cases,  that  the  vendor  ac- 
cepted them  as  evidences  of  the  amount  of  the  purchase-money 
and  debt,  or  as  security  in  addition  to  his  lien.  But  if  the  se- 
curity taken  is  totally  distinct  and  independent,  it  will  be  very 
strong  evidence  that  it  was  intended  to  be  substituted  in  place 
of  the  lien ; '  and  if  it  is  in  any  way  inconsistent  with  the  con- 
tinued existence  of  the  lien,  it  will,  of  course,  be  conclusive  evi- 
dence that  the  lien  was  abandoned  or  extinguished.^  Lord 
Eldon,  after  a  careful  review  of  the  authorities,  came  to  the 
conclusion  that  every  case  depended  upon  its  own  peculiar  facts 
and  circumstances;  that  different  judges  would  have  deter- 
mined the  same  case  differently;  and  that  there  was  no  general 
rule  that  was  satisfactory;  and  he  adds,  "If  I  had  found  it  laid 
down  in  distinct  and  inflexible  terms,  that  when  the  vendor 
takes  security  for  the  consideration  he  has  no  lien,  that  would 
be  satisfactory."  ^ 

§  237.  In  the  United  States,  the  rule  that  Lord  Eldon  said 
would  be  satisfactory  substantially  prevails.  Thus,  if  the 
vendor  does  any  act  which  manifests  an  intention  to  rely  upon 

1  Ibid.;  Saunders  v.  Leslie,  2  B.  &  B.  514. 

*  Hughes  V.  Kearney,  1  Sch.  &  Lef.  135;  Gibbons  v.  Baddall,  2  Eq.  Ab. 
682;  Grant  v.  Mills,  2  Ves.  &  B.  306;  Cooper  v.  Spottiswood,  Taml.  21; 
Ex  parte  Peake,  1  Madd.  349;  Ex  parte  Loring,  2  Rose,  79;  Saimders  v. 
Leslie,  2  B.  &  B.  514;  Winter  v.  Anson,  3  Russ.  488;  1  S.  &  S.  434;  Fawell 
V.  Heelis,  Amb.  724;  Frail  v.  EUis,  17  Eng.  L.  &  Eq.  457;  Buckland  i;.  Pock- 
nell,  13  Sim.  406;  Blair  v.  Bromley,  5  Hare,  542;  2  Phill.  354;  Hewitt  v. 
Loosemore,  9  Hare,  449;  Kyles  v.  Tait,  6  Grat.  44;  Blackburn  v.  Gregson, 
1  Bro.  Ch.  420;  Coppin  v.  Coppin,  2  P.  Wms.  291;  Clark  v.  Royle,  3  Sim. 
499;  Elliott  v.  Edwards,  3  Bos.  &  P.  181. 

*  Ibid.;  Gilman  v.  Brown,  1  Mason,  191;  Good  v.  Pollard,  9  Price,  544; 
10  Price,  109;  Parrott  v.  Sweetland,  3  My.  &  K.  655;  Nairn  v.  Prowse,  6 
Ves.  752;  Mackreth  v.  Symmons,  15  Ves.  342. 

*  Manly  v.  Slason,  21  Vt.  271;  Hallock  v.  Smith,  3  Barb.  267;  Ex  parts 
Parkes,  1  Glyn  &  Jam.  228. 

'  Mackreth  v.  Symmons,  15  Ves.  342. 

402 


CHAP.  VII.]  vendor's  lien.  [§  237. 

any  security  independent  of  the  lien,  he  will  be  held  to  have 
waived  it;  ^  as  if  he  accept  a  mortgage  on  other  property,'-  or  a 
bond  or  note  with  a  third  person  as  surety  ^  or  indorser,''  or  if 
he  takes  a  pledge  of  stock  as  collateral,^  (a)  he  will  be  held  to 
have  waived  his  lien.  So,  if  he  takes  a  mortgage  on  the  same 
land  sold  for  part  of  the  purchase-money,  or  for  the  whole,^  he 
will  be  held  to  have  waived  his  lien  for  the  remainder.^    But  in 

*  Blackburn  v.  Gregson,  1  Bro.  Ch.  424;  and  notes  by  Perkins;  Buntin 
V.  French,  16  N.  H.  592;  Coit  v.  Fougera,  36  Barb.  195;  Griffin  v.  Blan- 
chard,  17  Cal.  70;  Phelps  v.  Conover,  25  lU.  309;  Selby  v.  Stanley,  4  Minn. 
65;  Hane  t;.  Van  Deusen,  32  Barb.  92;  Parker  v.  Sewell,  24  Tex.  238;  Dibble 
V.  Mitchell,  15  Ind.  435. 

»  Richardson  v.  Ridgely,  8  Gill  &  J.  87;  Wliite  v.  Dougherty,  1  Mart. 
&  Y.  309;  Young  v.  Wood,  11  B.  Mon.  123;  Mattix  v.  Weand,  19  Ind. 
151;  Harris  v.  Harlan,  14  Ind.  104;  Shelby  v.  Perrin,  18  Tex.  515; 
Camden  v.  Vail,  23  Cal.  633;  Hadley  i-.  Pickett,  25  Ind.  4.50.  [Griffin  v. 
Smith,  143  Fed.  865;  Shrimsher  v.  Newton,  3  Ind.  Terr.  555;  Electric 
Light  Co.  V.  Gas  Co.,  99  Tenn.  371,  376.] 

*  Boon  V.  Murphy,  6  Blackf.  272;  Williams  v.  Roberts,  5  Ohio,  35;  May- 
ham  V.  Coombes,  14  Ohio,  428;  Wilson  v.  Graham,  5  Munf.  297;  Francis  v. 
Hazelrigg's  Ex'rs,  Hardin,  48;  Way  v.  Patty,  1  Carter,  102;  Burger  v. 
Potter,  32  111.  66;  Sears  v.  Smith,  2  Mich.  243;  Porter  v.  Dubuque,  20 
Iowa,  440.  [  Spears  v.  Taylor,  149  Ala.  180;  Hammett  v.  Stricklin,  99  Ala. 
616;   Kinney  v.  Ensminger,  94  Ala.  536.] 

*  Foster  v.  Trustees,  3  Ala.  302;  Oilman  v.  Brown,  1  Mason,  191;  4 
Wheat.  255;  Marshall  v.  Christmas,  3  Humph.  616;  Burke  v.  Gray,  6  How. 
(Miss.)  527;  Conover  v.  Warren,  1  Gilm.  498;  Bradford  v.  Marvin,  2  Fla. 
463. 

*  Lagow  V.  Badollet,  1  Blackf.  416.  [  See  also  Dalliba  v.  Riggs,  7  Idaho, 
779,  795.] 

*  Little  V.  Brown,  2  Leigh,  355;  Hadley  v.  Pickett,  25  Ind.  450.  [  Baker 
V.  Updike,  155  111.  54,  58.]  But  see  to  the  contrary',  Boos  v.  Ewing,  17 
Ohio,  520;  Baum  v.  Grigsby,  21  Cal.  172. 

'  Brown  v.  Oilman,  4  Wheat.  291;  Fish  v.  Howland,  1  Paige,  30;  Phillips 
V.  Saunderson,  1  Sm.  &  M.  465.  Even  if  the  mortgage  is  void.  Camden 
V.  Vail,  23  Cal.  633;  Way  v.  Patty,  1  Ind.  102.  [  Hunton  v.  Wood,  101  Va. 
54,  59.] 

(a)  Or  obtains  a  judgment  for  kinson,    94    Tenn.    246;    Strain    v. 

the  price  in  whole  or  in  part,  and  Walton,    11    Texas    C.    App.    624. 

Bells  the  land   thereunder.    Dicka-  Or  if  he  takes  a  note  of  a  person 

eon  t;.  Fisher,  137  Mo.  342.    Merely  other  than  the  vendee.     Bennett  v. 

obtaining  judgment  on  the  note  does  Murphy,  108  N.  Y.  S.  231,  123  App. 

not  waive  the  lien.    Zwingle  v.  Wil-  Div.  102. 

403 


§  237.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.    [CHAP.  VII. 

these  cases  the  presumption  that  the  vendor  intended  to  waive 
his  Hen  by  taking  such  securities  may  be  rebutted  by  any  sat- 
isfactory evidence  that  it  was  not  intended  that  the  Hen  should 
be  waived.^  (a)  On  the  other  hand,  the  presumption  of  a  Hen 
may  be  rebutted,  though  no  security  is  taken,  by  satisfactory 
evidence  that  it  was  intended  that  the  Hen  should  not  be  relied 
on.^  But,  generally,  the  mere  taking  of  the  vendee's  note,  or 
bond,  or  bill,  or  check,^  or  the  renewal  of  these  evidences  of 
debt,^  will  not  be  sufficient  evidence  that  the  vendor  intended  to 
waive  his  lien.^  But  any  conduct  in  the  vendor  that  makes  it 
unjust,  unfair,  or  inequitable  for  him  to  insist  upon  the  lien,  will 
discharge  it.^  If  worthless  securities  are  fraudulently  imposed 
upon  the  vendor,  he  will  retain  his  lien.^ 

1  Mims  V.  Macon  and  Western  R.  R.,  3  Kelly,  333;  Campbell  v.  Bald- 
win, 2  Humph.  248;  Kyles  v.  Tait,  6  Grat.  48;  Tieman  v.  Thurman,  14  B. 
Mon.  277;  Sears  v.  Smith,  2  Mich.  243;  Daughaday  v.  Paine,  6  Minn.  443. 
[Jones  V.  Davis,  121  Ala.  348;  Hood  v.  Hammond,  128  Ala.  569;  Spears 
V.  Taylor,  149  Ala.  180;  Acree  v.  Stone,  142  Ala.  156;  Lucas  v.  Wade,  43 
Fla.  419;  Scott  v.  Edgar,  159  Ind.  38;  Lawson  v.  Spencer,  81  Mo.  App. 
169,  175;  Shelley  v.  Estes,  83  Mo.  App.  310;  Slide  &  Spur  Gold  Mines  v. 
Seymour,  153  U.  S.  509;  Boies  v.  Benham,  127  N.  Y.  620;  Bennett  v.  Mur- 
phy, 108  N.  Y.  S.  231,  123  App.  Div.  102.] 

=*  Clark  V.  Hunt,  3  J.  J.  Marsh.  553;  Phillips  v.  Saunderson,  1  Sm.  & 
M.  462;  Redford  v.  Gibson,  12  Leigh,  332;  Scott  v.  Orbinson,  21  Ark.  202. 
[  Walton  V.  Young,  132  Ala.  150.] 

3  Honore  v.  Bakewell,  6  B.  Mon.  67;  Baum  v.  Grigsby,  21  Cal.  172; 
Walker  v.  Sedgwick,  8  Cal.  398.  [Lyon  v.  Clark,  132  Mich.  521,  524^ 
Knight  V.  Knight,  113  Ala.  597.] 

^  Mims  V.  Lockett,  23  Ga.  237.  [  Eubank  v.  Finnell,  118  Mo.  App.  535, 
543.] 

6  Cox  V.  Fenwick,  3  Bibb,  183;  Evans  v.  Goodlet,  1  Blackf.  246;  Tay- 
lor V.  Hunter,  5  Humph.  569;  Garson  v.  Green,  1  Johns.  Ch.  308;  White 
V.  WiUiams,  1  Paige,  502;  Clark  v.  Hunt,  3  J.  J.  Marsh.  553;  Thornton  v. 
Knox,  6  B.  Mon.  74;  Aldridge  v.  Dunn,  7  Blackf.  249;  Ross  v.  Whitson, 
6  Yerg.  50;  Tompkins  v.  Mitchell,  2  Rand.  428;  Truebody  v.  Jacobson, 
2  Cal.  269;  Pinchain  v.  Collard,  13  Tex.  333;  Sheratz  v.  Nicodemus,  7 
Yerg.  9;  Manly  v.  Slason,  2  Vt.  271;  Baum  v.  Grigsby,  21  Cal.  172. 

6  Redford  v.  Gibson,   12  Leigh,  343;  Fowler  v.  Rust,  2  Marsh.  294; 

^  Coit  V.  Fougera,  36  Barb.  195;  Toby  v.  McAllister,  9  Wis.  463. 

(a)  Or  where  the  vendor  has  been     vendee.  Jones  v.  Rush,  156  Mo.  364, 
induced  to  take  the  other  security     373. 
by  fraudulent  representations  of  the 

404 


CHAP.  VII.]  vendor's  lien.  [§  238. 

§  23S.  It  has  been  said  before,  that  the  lien  for  the  purchase- 
money  is  not  an  estate  in  the  land,  nor  is  it  a  charge  on  the  land; 
but  it  is  an  equity  between  the  parties,  their  representatives  or 
privies  in  law  or  estate,  to  be  resorted  to  in  case  of  failure  of 
payment  by  the  vendee.  It  is  a  possibility  that  may  be  per- 
fected by  proceedings  in  equity  into  an  actual  estate  or  interest 
in  the  land.^  (a)  Having  such  a  character,  it  is  generally  con- 
sidered to  be  a  personal  privilege  in  the  vendor,  which  descends 
to  his  heirs  or  representatives  with  the  debt  for  the  purchase- 
money,  but  which  cannot  be  assigned  to  a  third  person,  with 
or  without  the  bond,  note,  bill,  or  check  which  the  vendee 
gave  for  the  consideration.-    If  one  of  several  purchasers  pays 

Clark  V.  Hunt,  3  J.  J.  Marsh.  558;  Phillips  v.  Saunderson,  1  Sm.  &  M. 
462;  McCown  v.  Jones,  14  Tex.  682;  Scott  v.  Orbinson,  21  Ark.  202;  Clamer  v. 
Rawlings,  9  S.  &  M.  122;  Lynch  v.  Dearth,  2  Penn.  St.  101. 

1  Young  V.  Williams,  17  Cal.  403;  21  Cal.  227;  Keith  v.  Homer,  32  111. 
524. 

2  Dixon  V.  Dixon,  1  Md.  Ch.  220;  Wellborn  v.  WiUiams,  8  Ga.  258; 
Green  v.  Demoss,  10  Humph.  371;  Walker  v.  Williams,  30  Miss.  165;  Briggs 
V.  Hill,  6  How.  (Miss.)  362;  Shall  v.  Biscoe,  18  Ark.  142;  Brush  v.  Kinsley, 
14  Ohio,  20;  Horton  v.  Horner,  id.  437;  Sheratz  v.  Nicodemus,  7  Yerg.  9; 
Gann  v.  Chester,  5  Yerg.  205;  White  v.  Williams,  1  Paige,  502;  Hallock  i-. 
Smith,  3  Barb.  267;  Green  v.  Crockett,  2  Dev.  &  Bat.  Eq.  390;  Moreton 
V.  Harrison,  1  Bland,  491;  Webb  v.  Robinson,  14  Ga.  216;  Dickinson,  v. 
Chase,  1  Morris  (Iowa),  492;  Jackman  v.  Hallock,  1  Ohio,  318;  Tieman  t;. 
Beam,  2  Ohio,  383;  Clairhorn  v.  Crockett,  3  Yerg.  27;  Briggs  v.  Planters' 
Bank,  1  Freem.  Ch.  574;  Iglehart  v.  Amiger,  1  Bland,  519;  Hayden  v.  Stuart, 
4  Md.  Ch.  280;  Hall  v.  Maccubbin,  5  Gill  &  J.  107;  Baum  v.  Grisby,  21 
Cal.  172;  Lewis  v.  Covilland,  id.  178;  Williams  v.  Young,  id.  227;  Keith  v. 
Horner,  32  111.  524;  Richards  v.  Leming,  27  111.  431;  Watson  v.  Bane,  7  Md. 
117.  [  McCrory  v.  Guyton,  154  Ala.  355;  Martin  v.  Martin,  164  111.  640; 
Gruhn  v.  Richardson,  128  111.  178,  184;  Law  i;.  Butler,  44  Minn.  482;  First 
Nat.  Bank  v.  Salem,  etc.,  Flour-Mills  Co.,  39  Fed.  89;  Evans  v.  Enloe,  70 
Wis.  345;  Zwingle  v.  Wilkinson,  94  Tenn.  246.  Vendor's  hen  passes  to 
assignee  of  the  claim  for  purchase-money  in  Mississippi  by  statute.  Code 
of  Miss.  (1906)  §  4001;  Elmslie  v.  Thurman,  87  Miss.  537.  Without  statute 
in  Indiana,  Mulky  v.  Karsell,  31  Ind.  App.  595,  597.  Assignable  in  Missouri, 
Dickason  v.  Fisher,  137  Mo.  342.  In  Texas  it  is  held  that  where  the  pur- 
chase-money notes  recite  that  they  are  such,  the  vendor's  lien  passes  by 

(a)  The  lien  is  enforceable  in  has  not  been  exhausted.  Burgess 
equity,  although  the  legal  remedy     v.  Fairbanks,  83  Cal.  215. 

405 


§  238.)  TRUSTS   BY   EQUITABLE   CONSTRUCTION.    [CHAP.  VII. 

the  whole  purchase-money,  he  does  not  thereby  secure  a  Hen 
on  his  co-purchasers'  shares;^  nor  does  a  hen  accrue  to  a  third 
person  who  loans  the  purchase-money  to  the  vendee  and  takes 
his  note  therefor;^  but  if  it  is  agreed  by  the  vendor  that  a  note 
for  the  purchase-money  shall  be  given  to  a  third  person,  it 
seems  that  the  vendor's  lien  will  go  with  the  note.^  (a)  If  the 
note  given  to  the  vendor  for  the  purchase-money  is  indorsed  by 
him,  and  afterwards  paid  by  him,  his  lien  will  revive  and  attach 
to  it.^  If  a  surety  to  the  vendee's  note  or  bond  for  the  purchase- 
money  is  obliged  to  pay  the  debt,  he  will  be  subrogated  to  the 
vendor's  lien,  and  will  have  a  right  to  have  it  enforced  for  his 
benefit,^  If  a  vendor  having  a  lien  on  real  estate  for  his  pur- 
assignment  to  a  purchaser  of  the  notes.  Sanger  Bros.  v.  Brooks,  100  S.  W. 
798  (Tex.  Civ.  App.  1907).]  But  in  Alabama,  Texas,  Kentucky,  Indiana, 
and  Iowa,  a  different  rule  prevails.  In  those  States  the  assignment  of  the 
note  given  for  the  purchase-money  carries  with  it  to  the  assignee  the  ven- 
dor's lien.  Roper  v.  McCook,  7  Ala.  318;  White  v.  Stover,  10  Ala.  441; 
Grigsby  v.  Hair,  25  Ala.  327;  Griffin  v.  Camack,  36  Ala.  695;  Murray  v. 
Able,  18  Tex.  515;  McAlpin  v.  Burnett,  19  Tex.  497;  Moore  v.  Raymond, 
15  Tex.  554;  Edwards  v.  Bohannon,  2  Dana,  98;  Honore  v.  Bakewell,  6  B. 
Mon.  67;  Lagow  v.  BadoUet,  1  Blackf.  417;  Brumfield  v.  Pahner,  7  id.  227; 
Fisher  v.  Johnson,  5  Ind.  492;  Kern  v.  Hazlerigg,  11  Ind.  443;  Rakestraw 
V.  Hamilton,  14  Iowa,  147;  Pierson  v.  David,  1  Clarke,  23. 

*  Glasscock  v.  Glasscock,  17  Tex.  480. 

«  Stansell  v.  Roberts,  13  Ohio,  148;  Skeggs  v.  Nelson,  25  Miss.  88; 
Crane  v.  Caldwell,  14  111.  468. 

*  Dryden  v.  Frost,  3  My.  &  Cr.  670.  In  this  case  the  third  person  was 
a  prior  mortgagee,  and  had  the  title-deeds  in  his  possession.  Colcord  v. 
Scamonds,  5  B.  Mon.  265.  [  McCrory  v.  Guyton,  154  Ala.  355;  Zwingle 
V.  Wilkinson,  94  Tenn.  246.] 

*  1  Lead.  Cas.  in  Eq.  368. 

5  Kleiser  v.  Scott,  6  Dana,  137;  Welch  v.  Parran,  2  Gill,  329;  Ghiselin 
V.  Ferguson,  4  Har.  &  J.  522;  Magruder  v.  Peter,  11  Gill  &  J.  228;  Burke 
V.  Chrisman,  3  B.  Mon.  50;  Freeman  v.  Mebane,  2  Jones,  Eq.  44;  Jordan 
t;.  Hudson,  11  Tex.  82;  Eddy  v.  Traver,  6  Paige,  521;  In  re  McGill,  6  Barr, 
504;  Kinney  v.  Harvey,  2  Leigh,  70;  Haffey  v.  Birchetts,  11  Leigh,  83; 
Schermerhom  v.  Barhydt,  9  Paige,  30;  Tompkins  v.  Mitchell,  2  Rand.  428; 
Melerey  v.  Cooper,  2  Bland,  199. 

(a)   Where  the  vendor's  lien  is  Butler,  72  Ark.  350;  Fryberger  v. 

expressly  reserved  in   the  deed  of  Berven,  88  Minn.  311,  315;  Elmen- 

transfer  it  haa  been  held  to  be  assign-  dorf  v.  Beime,  4  Tex.  Civ.  App.  188; 

able   like    a   mortgage.      Smith   v.  Gordon  v.  Johnson,  186  111.  18. 

406 


ciiAP.  VII.]  veotjor's  lien.  [§  239. 

chase-money  enforces  his  debt  against  the  personal  assets  of  a 
deceased  vendee,  and  thereby  deprives  creditors  or  legatees  of 
the  deceased  vendee  of  the  chance  of  being  paid  their  debts  or 
legacies,  equity  will  substitute  them  in  the  place  of  the  vendor, 
or  will  marshal  the  assets  in  order  to  do  justice  to  all.'  (a) 

§  239.  This  equitable  lien  or  trust  prevails  against  the  pur- 
chaser, his  heirs,  and  all  persons  claiming  under  him  or  them 
with  notice  that  the  purchase-money  is  unpaid.'^  It  prevails 
against  the  right  of  dower  of  the  widow  of  the  vendee,'  also 
against  a  voluntary  donee,  or  a  purchaser  without  notice,*  as 
also  against  a  purchaser  for  value,  if  he  had  notice  that  the 
purchase-money  remained  unpaid.^    If  the  purchaser  from  the 

»  2  Sugd.  V.  &  P.  873-878  (7th  Am.  ed.)  where  the  cases  are  collected 
and  commented  on. 

2  Hearle  v.  Botelers,  Gary,  Ch.  25;  Mackreth  v.  Symmone,  15  Ves.  329; 
Gibbons  v.  Baddall,  2  Eq.  Gas.  Ab.  682;  Walker  v.  Preswick,  2  Ves.  622; 
Elhot  V.  Edwards,  3  Bos.  &  P.  181;  Winter  v.  Anson,  3  Russ.  493;  Garson 
V.  Green,  1  Johns.  Ch.  308;  Warner  v.  Van  Alstyne,  3  Paige,  513;  Wade  v. 
Greenwood,  2  Robin.  475;  Ewbank  v.  Poston,  5  Mon.  285;  Neil  v.  Kinney, 
11  Ohio  St.  58.    [  Berger  v.  Bcrger,  104  Wis.  282.] 

'  Warner  v.  Van  Alstyne,  3  Paige,  513;  Wilson  v.  Davidson,  2  Rob. 
385;  Ellicott  v.  Welch,  2  Bland,  243;  Nazareth,  &c.,  v.  Lowe,  1  B.  Mon. 
257;  Fisher  v.  Johnson,  5  Ind.  492;  Crane  v.  Palmer,  8  Blackf.  120;  Wil- 
Hams  V.  Wood,  1  Humph.  408:  Besland  v.  Hewett,  11  Sm.  &  M.  164.  [  Sar- 
ver  V.  Clarkson,  156  Ind.  316.] 

*  Upshaw  V.  Hargrave,  6  Sm.  &  M.  286;  High  v.  Batte,  10  Yerg.  186, 
335;  Mounce  v.  Byars,  16  Ga.  469;  Burlingame  v.  Robbins,  21  Barb.  327; 
Hallock  V.  Smith,  3  Barb.  267. 

5  Wilcox  V.  Calloway,  1  Wash.  38;  Graves  v.  McCall,  1  Call,  414;  Red- 
ford  V.  Gibson,  12  Leigh,  332;  Wright  v.  Woodland,  10  Gill  &  J.  388;  Ghiselin 
V.  Ferguson,  4  Har.  &  J.  522;  Mounce  v.  Byars,  11  Ga.  180;  Thornton  v. 
Knox,  6  B.  Mon.  74;  Honore  v.  Bakewell,  id.  67;  Tieman  v.  Thurman,  14 
B.  Mon.  279;  Eskridge  v.  McClure,  2  Yerg.  84;  Sheratz  v.  Nicodcmus,  7 
Yerg.  9;  Pierce  v.  Gates,  7  Blackf.  162;  Brumfield  v.  Palmer,  id.  227;  Mc- 
Knight  V.  Brady,  2  Mo.  110;  Briscoe  v.  Bronaugh,  1  Tex.  326;  Pintard  r. 
Goodloe,  Hemp.  527;  Amory  v.  Reilly,  9  Ind.  490;  Manly  v.  Slason,  21  Vt 

(a)  It  has  been  held  that  a  ven-  original  vendor.    Ocean  Beach  Ass'n 

dor's  hen  good  against  a  subsequent  v.   Trenton  Trust,   etc.,  Co.,  48  A. 

mortgage    is    entirely    extinguished  559  (N.  J.  Ch.  1901). 
by  a  reconveyance  of  the  land  to  the 

407 


§  239.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.    [CHAP.  VII. 

vendee  has  not  paid  over  the  purchase-money,  equity  will 
attach  the  lien  or  trust  to  the  money  in  his  hands.^  But  a 
bona  fide  purchaser  for  value  from  the  vendee,  without  notice, 
will  take  the  estate  unaffected  by  the  trust  or  lien;^  or  if  by 
intermediate  conveyances  through  persons  who  have  notice  the 
estate  finally  comes  to  a  bona  fide  purchaser  for  value  without 
notice,  it  will  be  discharged  of  the  lien,^  A  bona  fide  purchaser 
is  defined  to  be  one  who  at  the  time  of  his  purchase  advances  a 
new  consideration,  surrenders  some  security,  or  does  some  other 
act  which  leaves  him  in  a  worse  position  if  his  purchase  should 
be  set  aside;'*  of  course,  a  mortgagee  without  notice  for  a  new 
consideration  comes  within  this  definition.^  So,  a  conveyance  or 
mortgage  to  individual  creditors  without  notice  is  held  to  pre- 
vail against  the  lien,  as  where  the  equities  are  equal  the  legal 
title  prevails.^    But  the  lien  prevails  against  assignees  in  bank- 

271;  Hallock  v.  Smith,  3  Barb.  267;  Cator  v.  Pembroke,  1  Bro.  Ch.  302;  Ew- 
bank  v.  Poston,  5  Mon.  291;  McAlpin  v.  Burnett,  19  Tex.  497;  Pierson  v. 
David,  1  Clarke,  23;  Grapengether  v.  Fejervary,  9  Iowa,  163;  Merritt  v. 
Wells,  18  Ind.  171.  [  Rewis  v.  Williamson,  51  Fla.  529;  Harter  v.  Capital 
City  Brewing  Co.,  64  N.  J.  Eq.  155;  Koch  v.  Roth,  150  111.  212,  219.] 

1  Ripperdon  v.  Cozine,  8  B.  Mon.  465. 

2  Bayley  v.  Greenleaf,  7  Wheat.  46;  Clark  v.  Hunt,  3  J.  J.  Marsh.  553 
Duval  V.  Bibb,  4  Hen.  &  M.  113;  Wood  v.  Bank  of  Kentucky,  5  Mon.  194 
Bhghts,  &c.,  V.  Bank,  &c.,  6  Mon.  192;  Taylor  v.  Hunter,  5  Humph.  569 
Stewart  v.  Ives,  1  Sm.  &  M.  197;  Cames  v.  Hubbard,  2  S.  &  M.  108;  Dunlop 
V.  Burnett,  5  Sm.  &  M.  702;  Work  v.  Brayton,  5  Ind.  396;  Carter  v.  Bank  of 
Georgia,  24  Ala.  37;  Bradford  v.  Harper,  25  Ala.  337;  Webb  v.  Robinson,  14 
Ga.  216;  Champion  v.  Brown,  6  Johns.  Ch.  402;  Collier  i'.  Harkness,  26  Ga. 
362;  Selby  v.  Stanley,  4  Miss.  65;  Scott  v.  Orbinson,  21  Ark.  202.     [  Hertz- 
feld  V.  Bailey,  103  Ala.  473;  Hawes  v.  Chaille,  129  Ind.  435;  Robinson  v. 
Owens,  103  Tenn.  91.] 

3  Boon  V.  Barnes,  23  Miss.  136. 
*  Ibid. 

5  Duval  V.  Bibb,  4  Hen.  &  M.  113;  Wood  v.  Bank  of  Kentucky,  5  Mon. 
194;  Clark  v.  Hunt,  3  J.  J.  Marsh.  553;  Growmg  v.  Behn,  10  B.  Mon.  383. 
[  Hubbell  V.  Hendrickson,  175  N.  Y.  175;  Campbell  i;.  Sidwell,  61  Ohio  St. 
179.] 

«  Bayley  v.  Greenleaf,  7  Wheat.  56;  Mitford  v.  Mitford,  9  Ves.  100; 
Moore  v.  Holcombe,  3  Leigh,  597;  Webb  v.  Robinson,  14  Ga.  216;  Dunlop 
V.  Burnett,  5  Sm.  &  M.  702;  Johnson  v.  Cawthom,  1  Dev.  &  Bat.  32;  Har- 
per V.  Williams,  id.  179;  Roberts  v.  Rose,  2  Humph.  145;  Gann  v.  Chester, 

408 


CHAP.  VII.]  vendor's  lien.  [§  239. 

ruptcy  or  insolvency,  and  against  a  general  assignment  by  a 
failing  debtor,  in  trust  for  all  his  creditors,  (a)  In  these  cases 
the  vendees  are  looked  upon  as  volunteers,  and,  as  such,  they 
have  the  rights  only  of  the  debtor  himself.^  Notice  to  the 
agent  of  the  purchaser  is  notice  to  the  purchaser,^  and  if  the 
vendor  remain  in  possession  it  will  be  sufficient  to  put  a  pur- 
chaser upon  his  inquiry  and  is  constructive  notice,^  and  any 
fact  that  would  put  a  reasonable  man  upon  his  inquiry  will 
affect  the  purchaser  with  notice.^  So,  if  a  purchaser  knows  that 
a  part  of  the  purchase-money  is  unpaid,  he  is  put  upon  his 
inquiry;^  and  such  purchaser  is  bound  to  take  notice  of  all  the 
recitals  in  the  deed  to  the  vendee.® 

5  Yerg.  205;  but  see  Brown  v.  Vanlier,  7  Humph.  239;  Shirley  v.  Sugar  Ref., 
2  Edw.  505;  Repp  v.  Repp,  12  Gill  &  J.  341;  Ringgold  v.  Bryan,  3  Md.  Ch. 
488;  Aldridge  v.  Dunn,  7  Blackf.  249;  but  see  Chance  v.  McWortee,  26  Ga. 
315.    [  See  Robinson  v.  Owens,  103  Tenn.  91.] 

»  Mitford  V.  Mitford,  9  Ves.  100;  Fawell  v.  Heelis,  Amb.  726;  Black- 
burn V.  Gregson,  1  Bro.  Ch.  420;  Grant  v.  Mills,  2  Ves.  &  B.  306;  Ex  parte 
Peake,  1  Madd.  356;  Chapman  v.  Tanner,  1  Vern.  267;  Bayley  v.  Green- 
leaf,  7  Wheat.  54;  Green  v.  Demoss,  10  Humph.  371;  Brown  v.  Heathcote, 

1  Atk.  160;  Simond  v.  Hilbert,  1  Russ.  &  My.  729;  Jewson  v.  Moulson, 

2  Atk.  417;  Stott  v.  Surman,  Willes,  402;  Warrall  v.  Morlar,  1  P.  Wms. 
459.  And  so  of  judgment  creditors.  Flanders  v.  Thompson,  3  Woods.  9; 
Rodgers  v.  Bowner,  45  N.  Y.  379;  Birkhard  v.  Edwards,  11  Ohio  St.  84; 
Bank  v.  Campbell,  2  Rich.  (S.  C.  Eq.)  179;  Watkins  v.  Russell,  15  Ark.  73; 
Thomas  v.  Kennedy,  24  Iowa,  397;  Dunlop  v.  Burnett,  5  Sm.  &  M.  702. 
[  Lyon  V.  Clark,  132  Mich.  521.] 

2  Mounce  v.  Byars,  11  Ga.  180;  Frail  v.  Ellis,  17  Eng.  L.  &  Eq. 
457. 

3  Ringgold  V.  Bryan,  3  Md.  Ch.  488;  Hamilton  v.  Fowlkes,  16  Ark.  340; 
Hopkins  v.  Garrard,  6  B.  Mon.  67. 

*  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457;  Briscoe  i-.  Bronaugh,  1  Tex.  328. 

6  Manly  v.  Slason,  21  Vt.  271. 

«  Kilpatrick  ;-.  Kilpatrick,  23  Miss.  124;  Thornton  v.  Knox,  6  B.  Mon. 
74;  Woodward  v.  Woodward,  7  B.  Mon.  116;  McRemmon  v.  Martin,  14 
Tex.  318;  Tiernan  v.  Thurman,  14  B.  Mon.  277;  Honore  v.  Bakewell,  6 
B.  Mon.  67;  Hutchinson  v.  Patrick,  22  Tex.  318;  McAlpin  v.  Burnett,  23 
Tex.  649. 

(a)  Also,  as  against  attaching  v.  Albright,  60  Ohio  St.  48.  See 
creditors,  even  though  their  claims  also  Campbell  t'.  Sidwell,  61  Ohio 
arose  after  the  conveyance.     Miller    St.  179. 

409 


§  240.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.     [CHAP.  VII. 

§  240.  A  person  may  also  become  a  trustee  by  construc- 
tion, in  the  absence  of  fraud,  where  a  trust  is  created;  but  if 
no  trustee  is  appointed,^  or  the  trustee  named  is  incapable  of 
taking,^  or  refuses  to  act,'  or  dies,^  or  the  office  becomes  vacant 
in  any  other  way;^  in  all  such  cases  every  person  to  whom  the 
trust  property  comes,  by  reason  of  there  being  no  trustee,  will 
be  treated  as  a  trustee,  and  he  may  be  ordered  to  account,  and 
to  convey  the  property  to  such  other  persons  as  trustees  as  the 
court  may  appoint.®  As  where  a  man  makes  a  devise  in  trust 
by  his  will,  but  names  no  trustee,  the  land  descends  to  his 
heirs,  but  in  trust  for  the  purposes  named  in  the  will;  and  his 
heirs  would  be  required  to  account  for  the  property,  and  to 
convey  the  same  to  such  trustees  as  the  court  might  appoint.'^ 
Courts  of  equity  have  inherent  jurisdiction  over  all  matters  of 
trust  and  trustees,  and  they  never  allow  a  trust  to  fail  for  want 
of  a  trustee.*  So,  if  a  party  forbidden  by  law  to  convey  his 
property  to  some  person  standing  in  a  certain  relation  to  him, 
as  if  a  husband  who  cannot  convey  to  his  wife  should  make  an 
absolute  conveyance  directly  to  her,  the  conveyance  would  not 
pass  the  legal  title,  but  equity  would  construe  it  into  a  declara- 
tion of  trust,  and  the  husband  into  a  trustee  for  the  wife.* 


»  White  V.  White,  1  Bro.  Ch.  12;  Dodkin  v.  Brunt,  L.  R.  6  Eq.  580. 

*  Sonley  v.  Clockmakers'  Co.,  1  Bro.  Ch.  81;  Ex  parte  Turner,  1  Bailey 
Ch.  395. 

*  King  V.  Donnelly,  5  Paige,  46;  Hawley  v.  James,  id.  318;  De  Peyster 
V.  Clendining,  8  Paige,  295;  Lee  v.  Randolph,  2  if  en.  &  M.  12;  Ex  parte 
Kunst,  1  Bailey,  489;  Dawson  v.  Dawson,  Rice,  243;  Field  v.  Airowsmith, 
3  Humph.  448. 

*  Dunscomb  v.  Dunscomb,  2  Hen.  &  M.  11. 
»  Gibson's  Case,  1  Bland,  138. 

*  Ibid.;  Cushney  v.  Henry,  4  Paige,  345;  Mclntire  School  v.  Zan.  Canal, 
&c.,  9  Ham.  203;  White  v.  Hampton,  13  Iowa,  259;  McKenna  v.  Phillips, 
6  Whart.  571;  Boykin  v.  Ciples,  2  Hill,  Eq.  200;  WUson  i;.  Towle,  36  N.  H. 
129;  Pool  0.  Cummings,  20  Ala.  563;  Griffith  v.  Griffith,  5  B.  Mon.  113. 

^  Stone  V.  Griffin,  3  Vt.  400. 

«  McCartney  v.  Bostwick,  32  N.  Y.  53;  Vidal  v.  Girard,  2  How.  128. 

*  Huntly  V.  Huntly,  8  Ired.  Eq.  250;  Gamer  v.  Gamer,  Busbee  Eq.  1. 
[  Carter  v.  McNeal,  86  Ark.  150;  Sims  v.  Rickets,  35  Ind.  181 ;  Stark  v.  Kirch- 
graber,  186  Mo.  633;  Sayres  v.  Wall,  26  Gratt.  354;  Jones  v.  Obenchain,  10 

410 


CHAP.  VII.]  TRUST    FROM    GIFT    OF   TRUST    PROPERTY.  [§  241. 

Therefore  if,  upon  the  death  of  the  trustee  without  heirs,  the 
legal  title  should  escheat  to  the  Crown  or  the  State,  equity 
would  follow  the  property  and  execute  the  trust  by  the  appoint- 
ment of  new  trustees  or  otherwise.^ 

§  241.  Another  instance  of  a  constructive  trust  without  fraud 
is  where  a  person  receives  the  trust  property  from  the  trustee 
without  notice  of  the  trust,  by  way  of  voluntary  gift  or  without 
paying  a  valuable  consideration.  If  such  person  had  notice  of 
the  trust,  it  would  be  a  fraud  to  receive  the  trust  fund  even  if 
he  paid  a  valuable  consideration,  and  he  would  be  held  as  a 
constructive  trustee;^  but  if  he  paid  a  valuable  consideration 
without  notice,  he  would  hold  the  property  unaffected  by  the 
trust.'  And  if  he  receives  the  property  without  paying  a 
valuable  consideration,  and  without  notice,  equity  holds  the 
absence  of  a  consideration  as  equivalent  to  notice,  and  con- 
strues the  taker  into  a  trustee,  and  liable  as  such  to  the 
same  extent  as  the  trustee  from  whom  he  took  it."*  But  if  a 
person  comes  into  possession  of  the  trust  property,  not  by, 
under,  or  through  the  trustee,  but  against  him,  as  by  disseizing 
or  ousting  him,  he  will  not  be  bound  by  the  trust,  although  he 
have  notice  of  it;  for  the  disseizor  creates  a  title  for  himself 
paramount  to  the  title  of  the  trustee,^  and  all  outstanding 
terms  attending  the  inheritance  will  attend  the  title  of  the 
disseizor  until  he  is  dispossessed  by  some  other  paramount 
title.®  In  States  where  registry  laws  are  in  force,  the  registry 
of  a  deed  from  a  grantor  who  had  no  right  to  the  land  is  not 
constructive  notice  to  the  true  owner  that  such  deed  has  been 


Gratt.  259.  See  contra,  Livingstone  v.  Mvirphy,  187  Mass.  315;  Stetson 
«;.  O'Sullivan,  8  Allen,  321.    See  supra,  §  109,  and  notes.] 

'  Stat.  4  &  5  Will.  IV.  c  23;  Hughes  v.  Wells,  9  Hare,  749;  13  Eng. 
L.  &  Eq.  389. 

»  Ante,  §  220. 

»  Ante,  §§  217,  218. 

*  Mansell  i;.  Mansell,  2  P.  Wms.  691;  Pye  v.  George,  1  P.  Wms.  128. 
»  Finch's  Case,  4  Inst.  85;  Sugd.  Glib.  Uses,  429. 

•  Reynolds  v.  Jones,  2  S.  &  S.  206. 

411 


§  242.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.    [CHAP.  VII. 

made,  and  it  is  constructive  notice  only  to  subsequent  pur- 
chasers under  the  same  grantor.^ 

§  242.  Analogous  to  the  gift  or  sale  of  the  trust  property 
by  trustees  is  the  right  of  dealing  with  its  property  by  a  cor- 
poration. A  corporation  holds  its  property  in  trust,  first,  to 
pay  its  creditors,  and,  second,  to  distribute  to  its  stockholders 
-pro  rata}  (a)     If  therefore  a  corporation  should  dissolve,  and 

1  Bates  V.  Norcross,  14  Pick.  225;  Tilton  v.  Hunter,  11  Shep.  29;  Stuy- 
vesant  v.  Hall,  2  Barb.  Ch.  151;  KeUer  v.  Nutz,  5  S.  &  R.  246;  Woods  v. 
Farmene,  7  Watts,  382;  Crockett  i;.  McGuire,  10  Miss.  34. 

=*  National  Bank,  &c.,  v.  Lake  Shore,  &c.,  R.  R.  Co.,  21  Ohio  St.  232. 


(a)  Although  it  is  frequently 
stated  in  the  decisions  that  the  as- 
sets of  a  corporation  are  a  trust 
fund"  for  the  benefit  of  its  creditors, 
Olmstead  v.  Vance,  196  111.  236; 
Allen  V.  Grant,  122  Ga.  552;  Hurd 
V.  N.  Y.  &  C.  Steam  Laundry  Co., 
167  N.  Y.  89;  Holshouser  v.  Copper 
Co.,  138  N.  C.  248,  251;  Washington 
Liquor  Co.  f.  Alladio  Cafe  Co.,  28 
Wash.  176,  the  better  opinion  sup- 
ported by  the  great  weight  of 
authority,  is  that  there  exists  no 
trust  relation  between  a  corporation 
and  its  creditors,  and  that  the  rights 
of  creditors  in  its  property  are  not 
essentially  different  from  the  rights 
of  creditors  of  individuals  in  the 
property  of  the  latter.  O'Bear 
Jewelry  Co.  v.  Volfer,  106  Ala.  205 
Farwell  Co.  v.  Sweetzer,  10  Colo.  Ap 
421;  Fear  v.  Bartlett,  81  Md.  435 
Hospes  V.  Northwestern  Manuf .  Co. 
48  Minn.  174;  Memphis  Barrel  Co 
V.  Ward,  99  Tenn.  172;  Balhn  v 
Merchants'  Exchange  Bank,  89 
Wis.  278;  HoUins  v.  Brierfield  Coal 
Co.,  150  U.  S.  371;  Chattanooga, etc., 
R.  Co.  V.  Evans,  66  Fed.  809.  See 
also  25  Am.  L.  Rev.  749;  2  Clark 

412 


&  Marshall,  Private  Corporations 
and  Supplement,  §§  767-768;  1  Cook 
on  Corporations  (6th  ed.),  §  9;  1 
Purdy's  Beach  on  Private  Corpora- 
tions, §  299.  A  full  discussion  of 
the  "trust  fund"  doctrine  seems  to 
belong  more  properly  to  a  treatise 
on  the  law  of  corporations. 

Similarly  the  relation  between 
the  corporation  and  its  stockholders 
is  so  different  from  that  of  an  ordi- 
nary trustee  and  cestui  que  tnist  that 
the  word  trust  as  applied  to  the 
relation  is  likely  to  mislead.  The 
stockholder  has  no  equitable  inter- 
est in  specific  parcels  or  articles  or 
property  owned  by  the  corporation. 
He  has  only  a  right  to  a  proportion- 
ate share  of  the  profits  and  to  have 
the  property  used  for  certain  pur- 
poses only.  Equity  will  on  occasion 
protect  him  in  these  rights  by  re- 
straining ultra  vires  acts  authorized 
by  a  majority,  including  in  ultra 
vires  acts  a  use  or  disposition  of  the 
property  for  a  purpose  other  than 
the  advancement  of  the  interests 
of  the  corporation,  as,  for  example, 
a  use  of  the  property  and  business 
of  the  company  for  the  benefit  of 


CHAP.  VII.]    RELATION  OF  CORPORATION  TO  CREDITORS.       [§  242. 

divide  its  property  among  its  shareholders  without  first  paying 
its  debts,  equity  would  enforce  the  claims  of  its  creditors  by 
converting  all  persons,  except  bona  fide  purchasers  for  value, 
to  whom  its  property  had  come,  into  trustees,  and  would  compel 
them  to  account  for  the  property  and  contribute  to  the  pay- 
ment of  the  debts  of  the  corporation  to  the  extent  of  its  prop- 
erty in  their  hands.^  In  England,  the  doctrine  of  constructive 
trusts  is  not  enforced  against  the  Bank  of  England  in  regard  to 
its  stock  standing  upon  its  books;  the  bank  is  bound  to  recog- 
nize only  the  person  who  has  the  legal  title.^  But  Chief  Justice 
Taney  said  that  the  decisions  as  to  the  Bank  of  England  were 
exceptions  depending  upon  the  policy  of  the  acts  of  parlia- 
ment in  reference  to  the  bank,  and  that  certainly  none  of  the 
Enghsh  cases  convey  the  idea  that,  upon  general  principles 
of  law,  a  bank  is  not  bound  to  notice  a  trust  of  its  own  stocks, 
and  must  look  only  at  the  legal  estate.^  In  the  United  States 
it  is  well  established,  that  if  a  corporation  that  requires  a 
transfer  of  its  stock  to  be  made  by  its  own  oflBcers  upon  its  own 
books  permits  a  transfer  to  be  made,  by  an  executor,  trustee, 

^  Mumma  v.  Potomac  Co.,  8  Pet.  281;  Vose  v.  Grant,  1.5  Mass.  515; 
Spear  v.  Grant,  16  Mass.  9;  Wood  v.  Dummer,  3  Mason,  308;  2  Story's 
Eq.  Jur.  §  1252;  Hill  v.  Fogg,  41  Mo.  562;  Hastings  v.  Drew,  76  N.  Y.  9. 

2  Pearson  v.  B'k  of  Eng.,  2  Bro.  Ch.  529;  Hartga  t-.  B'k  of  Eng.,  3  Ves. 
Jr.  55;  B'k  of  Eng.  t'.  Parsons,  5  Ves.  668;  Au.stin  v.  B'k  of  Eng.,  8  Ves. 
522;  B'k  of  Eng.  v.  Lunn,  15  Ves.  583;  Bristed  i;.  Williams,  3  Hare,  235; 
Humberstone  v.  Chase,  2  Y.  &  C.  209;  Franklin  v.  B'k  of  Eng.,  9  B.  &  C. 
156;  B'k  of  Eng.  v.  Moffat,  3  Bro.  Ch.  260;  Pearson  v.  B'k  of  Eng.,  2  Cox, 
178;  Rider  v.  Kidder,  10  Ves.  369;  Ripley  i'.  Waterworth,  7  Ves.  440;  Stat. 
4  W.  &  M.  c.  3,  §  10;  5  W.  &  M.  c.  20,  §  20;  1  Geo.  I.  St.  2,  c.  19,  §  12;  30 
Geo.  II.  c.  19,  §  49;  7  Will.  IV.  &  1  Vic.  c.  26;  8  &  9  Vic.  c.  97;  Lewin  on  Trusts 
(2d  Am.  ed.),  32. 

'  Lowry  v.  Commercial  B'k,  3  Bankers'  Mag.  201;  10  Pa.  Law  Jour. 
(3  Am.  L.  J.  N.  s.)  111. 

another  corporation   of  which   the  Sage   v.    Culver,    147    N.    Y.    241; 

majority  are  members.     Menier  v.  Gamble  v.  Queen's  County  Water 

Hooper's  Tel.   Works,   9  Ch.   350;  Co.,  123  N.  Y.  91.    See  also  Mason 

Farmers'  L.  &  Tr.  Co.  v.'N.Y.  &  N.  v.  Pewabic  Mining  Co.,  133  U.  S. 

R.  Co.,  150  N.  Y.  410;  Brewer  v.  50. 
Boston    Theatre,    104    Mass.    378; 

413 


§  242.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.    [CHAP.  VII.* 

or  guardian,  of  stock  held  by  such  p)ersons  in  a  fiduciary  capacity, 
such  corporation,  knowing  the  trust,  and  that  the  transfer  is 
made  for  purposes  other  than  such  trust,  will  be  held  in  equity 
as  a  constructive  trustee  of  the  stock  thus  wrongfully  conveyed, 
and  will  be  liable  to  make  it  good  to  the  cestui  que  trust}  (a) 
And  if  a  corporation  negligently  enter  the  names  of  the  parties 
upon  its  books,  in  such  manner  that  the  stock  is  improperly 
transferred,  it  will  be  liable  as  a  constructive  trustee.'^  Accord- 
ingly a  corporation  has  a  right  to  require  from  all  fiduciary 
holders  of  stock  evidence  of  their  authority  to  make  the  trans- 
fer.' It  has  been  held  that  the  mere  addition  of  the  word  "  trus- 
tee," without  any  reference  to  the  terms  of  the  trust  or  the 
persons  of  the  cestuis  que  trust,  is  not  sufficient  notice  to  a  bank 
to  render  it  liable  in  case  the  stock  is  wrongfully  transferred  by 
the  holder;  ^  and  it  it  said  that,  as  a  guardian  has  a  right  to  sell 
the  personal  property  of  his  ward,  a  corporation  is  not  liable  if 
he  wrongfully  transfers  the  stock  on  its  books.^  If  purchasers 
of  stock  in  a  corporation  have  notice  that  their  vendors  are 
trustees,  they  will  be  held  as  constructive  trustees;  and  if  the 
certificates  are  passed  over  to  the  purchaser  with  the  word 
"trustee"  added  to  the  name  of  the  seller,  the  purchaser  is 
bound  to  inquire  into  the  particulars  of  the  trust,  and  he  has 
such  notice  as  will  bind  him  as  a  trustee  if  the  sale  was  wrong- 

'  Mechanics'  B'k  v.  Seton,  1  Pet.  299;  Porter  v.  B'k  of  Rutland,  19  Vt. 
410;  Albert  v.  Savings  B'k,  1  Md.  Ch.  407;  2  Md.  160;  Farmers'  B'k  v. 
Wayman,  5  Gill,  356;  Atkinson  v.  Atkinson,  8  Allen,  15;  Loring  v.  Salis- 
bury Mills,  125  Mass.  138;  Holden  v.  New  York  &  Erie  Bank,  72  N.  Y.  286. 

^  Farmers'  B'k  v.  Wayman,  5  Gill,  356. 

»  Bayard  v.  Farmers'  &  Mech.  Nat.  B'k,  2  Leg.  Int.  164. 

*  .-Ubert  V.  Savings  B'k,  1  Md.  Ch.  407;  2  Md.  160.  But  see  to  the  con- 
trary, Walsh  V.  Stille,  2  Pars.  Eq.  17. 

^  B'k  of  Virginia  v.  Craig,  6  Leigh,  339.  But  see  Atkinson  v.  Atkinson, 
8  Allen,  15.  In  the  last  case,  however,  the  transfer  was  after  the  removal 
of  the  guardian  and  the  appointment  of  another  in  his  place. 

(a)    See    Lowell,     Transfer     of  38  App.  Div.  22;  Bohlen's  Estate, 

Stock,  §§  151,  242;  1  Cook  on  Cor-  75  Pa.  St.  304,  313;  mwa,  §  225, 

porations  (6th  ed.),  §  327;  Cooper  v.  note,  p.  377  et  seq. 
111.  Cen.  R.  Co.,  57  N.  Y.  S.  925, 

414 


CHAP.  VII.]  CONVEYANCE    AS    SECURITY.  [§  243. 

fully  made.'  But  if  the  purchaser  does  not  see  the  certificates 
of  the  stock  in  the  seller's  hands,  as  if  the  seller  himself  transfer 
the  stock  upon  the  books  of  the  company,  and  brings  to  the 
purchaser  new  certificates  that  he  is  entitled  to  so  many  shares, 
the  purchaser  would  not  be  affected  with  notice,  and  would 
not  be  held  as  a  trustee.^  (a) 

§  243.  Again,  if  one  receives  a  conveyance  of  lands  or  other 
property  absolute  in  form,  but  really  as  security  for  a  debt,  he 
will  hold  the  legal  title  in  trust  for  the  grantor  after  the  payment 
of  the  debt,  and  before  a  reconveyance.^  So,  if  one  receives 
personal  property,  agreeing  to  hold  it  for  another,  or  to  sell  it 
and  pay  the  proceeds  to  the  holder  of  a  note,  draft,  or  other 
debt,  he  becomes  a  trustee,  and  a  bill  in  equity  may  be  main- 
tained against  him  and  his  pledges  to  enforce  the  trust.^  But 
if  such  conveyance  is  fraudulent  and  void,  the  bona  fide  holder 
of  the  note  or  draft  cannot  enforce  the  trust.^  In  England, 
upon  the  death  of  the  mortgagee  the  mortgage  debt  goes  to  his 

1  Walsh  V.  Stille,  2  Pars.  Eq.  17;  Reeder  i;.  Barr,  4  Ham.  446;  Simons 
V.  S.  W.  Railway  B'k,  2  Am.  Law  Reg.  546;  Atkinson  v.  Atkinson,  10  Allen, 
15. 

*  Lowry  v.  Commercial  B'k,  3  Bankers'  Mag.  201;  10  Pa.  Law  Jour. 
Ill;  Albert  v.  Savings  B'k,  2  Md.  160;  Atkinson  v.  Atkinson,  10  Allen,  15. 

*  Maverick,  &c.,  hoc.  v.  Lovejoy,  6  Allen,  163;  Baldmn  v.  Bannister, 
3  P.  Wms.  251;  Poole  v.  Pass,  1  Beav.  600;  Cm.  Dig.  tit.  15;  Mort.  c.  3, 
§  5,  tit.  15,  c.  2,  §  39;  Wilkinson  v.  Stewart,  30  111.  48;  Smyth  v.  Carlisle, 
16  N.  H.  464. 

*  Michigan  State  Bank  v.  Gardner,  15  Gray,  362;  Ulman  v.  Barnard, 
7  Gray,  554;  Martm  v.  Coles,  1  M.  &  S.  140;  Graham  v.  Dyster,  6  M.  &  S. 
1;  Rodriquez  v.  Heflferman,  5  Johns.  Ch.  417;  De  Wolf  v.  Gardner,  12  Cush. 
19;  Ellis  V.  Lamme,  42  Mo.  153;  Petersham  v.  Tash,  2  Stra.  1178;  Warner 
I'.  Martin,  11  How.  224;  Evans  v.  Potter,  2  Gall.  13;  Daubigny  v.  Duval, 
5  T.  R.  604;  Guerreiro  v.  Peile,  3  B.  &  Aid.  616;  De  Bouchout  t-.  Goldsmid, 
5  Ves.  211;  Skinner  v.  Dodge,  4  Hen.  &  M.  423;  Newson  v.  Thornton,  6 
East,  17;  McCombie  v.  Davies,  7  East,  5;  Kinder  v.  Shaw,  2  Maas.  398; 
Van  Amringe  v.  Peabody,  1  Mason,  440. 

«  Potter  «;.  McDowaU,  43  Mo.  93. 

(a)  As  to  notice  of  the  trust  and  into  the  authority  of  the  trustee,  see 
the  duty  of  third  persons  to  inquire     infra,  §  800  et  scq. 

415 


§  244.J  TRUSTS    BY    EQUITABLE    CONSTRUCTION.     [CHAP.  VII. 

personal  representatives,  but  the  fee  in  the  mortgaged  real 
estate  descends  to  his  heirs,  if  not  otherwise  disposed  of;  but 
his  heirs  hold  it  upon  a  constructive  trust,  as  security  for  the 
debt,  which  has  gone  to  his  executors  or  administrators.^  (a) 
In  nearly  all  the  United  States,  both  the  debt  and  the  mortgage 
security  are  chattel  interests,  and  go  to  the  executors  or  adminis- 
trators, and  not  to  the  heirs,^  and  payment  of  the  mortgage 
debt  discharges  the  mortgage;  but  while  the  mortgagee  is  in 
possession,  he  is  a  constructive  trustee  up  to  the  time  that  the 
mortgagor's  equity  of  redemption  expires,  and  he  is  bound  to 
account  for  the  rents  and  profits  in  due  course  of  administra- 
tion.^ It  has  even  been  thought  that  he  is  liable  for  the  rents  and 
profits  after  he  has  transferred  his  mortgage;*  but,  as  he  has  a 
right  to  assign  his  mortgage  without  notice  to  the  mortgagor, 
it  would  seem  that  he  would  not  be  liable  for  anything  after 
he  had  assigned  his  mortgage  and  the  possession.^  If  a  mort- 
gagee assigns  the  mortgage  debt  but  not  the  mortgage,  he 
holds  the  title  to  the  mortgaged  premises  in  trust  for  the  owner 
of  the  debt.®  So  one  who  takes  a  mortgagee's  title  holds  it  in 
trust  for  the  owner  of  the  debt  which  the  mortgage  was  intended 
to  secure.^ 

§  244.  At  common  law,  if  a  testator  appointed  his  debtor 
to  be  the  executor  of  his  will,  the  debt  was  extinguished,  on 
the  ground  that,  as  the  executor  could  not  maintain  an  action 

1  Ellis  V.  Guavas,  2  Ch.  Gas.  60;  Ghase  v.  Lockerman,  11  G.  &  J.  185. 

*  See  Greenleaf's  Gruise,  Dig.  tit.  15,  c.  2,  §§  39,  40,  and  notes;  4  Kent, 
160,  194. 

3  Goppring  v.  Gooke,  1  Vera.  270;  Bentham  r;.  Haincourt,  Pr.  Gh.  30; 
Parker  v.  Galcroft,  6  Madd.  11;  Hughes  v.  Williams,  12  Ves.  493;  MaddockH 
V.  Wren,  2  Gh.  R.  109. 

*  Venables  v.  Foyle,  1  Gh.  Gas.  3. 

5  Ringham  v.  Lee,  15  Sim.  400;  Re  Radcliffe,  22  Beav.  201. 
«  Torrey  v.  Morrill,  53  Vt.  331. 
'  Jordan  v.  Gheney,  74  Maine,  359. 

(o)  As  to  the  equitable  mortgage    and  notes;  Bullowa  v.  Orgo  (N.  J. 
created  by  deposit  of  title-deeds,  see    Eq.),  41  Atl.  494. 
I  Kent   Gom.  (14th  ed.)  150,  151, 

416 


CHAP.  VII.]  TRUSTEE    DE    .SON   TORT.  (§  245. 

against  himself,  the  remedy  was  gone,  and  where  the  remedy  is 
gone,  the  debt  is  gone.^  Equity,  however,  construes  the  debtor, 
although  he  is  executor,  to  be  a  trustee,  and  the  creditors,  lega- 
tees, and  next  of  kin  of  the  testator  can  enforce  the  trust  by 
compelling  the  executor  to  account  for  the  amount  of  the  debt 
due  from  him  to  the  testator.^  In  most  of  the  United  States 
this  matter  is  regulated  by  statute,  and  the  executor  may  be 
required  by  the  probate  court  to  put  the  amount  of  his  debt 
to  the  testator  into  his  inventory,  or  the  court  of  probate  may 
require  the  executor  to  charge  himself  with  the  amount  of  his 
debt  in  his  account.^  And  so  legatees  and  distributees  may  be- 
come constructive  trustees  for  creditors  of  the  estate,  if  the 
executor  or  administrator,  by  accident  or  mistake,  pays  over 
or  distributes  the  estate  before  all  debts  are  paid.  The  exec- 
utor may  be  sued  at  law  in  such  case  by  the  creditor,  and  he 
may  recover  over  against  the  persons  to  whom  he  has  paid  the 
estate.  In  equity,  however,  creditors  can  follow  the  fund  liable 
for  their  debts  into  the  hands  of  the  persons  to  whom  it  has 
come,  and  treat  them  as  constructive  trustees,  as  they  are  not 
entitled  to  anything  out  of  the  estate  till  the  debts  are  first 
satisfied.'' 

§  245.  A  person  may  become  a  trustee  by  construction,  by 
intermeddling  with,  and  assuming  the  management  of,  prop- 
erty without  authority.  Such  persons  are  trustees  de  son  tort, 
as  persons  who  assume  to  deal  with  a  deceased  person's  estate 

1  2   Williams'  Ex'rs,  1129;  2  Story's  Eq.  Jur.  §  1209. 

2  Berry  v.  Usher,  11  Ves.  90;  Simmons  v.  Gutteridge,  13  Ves.  264;  Carey 
V.  Goodinge,  3  Bro.  Ch.  HI;  Errington  v.  Evans,  2  Dick.  456;  Flud  v.  Rum- 
sey,  Yel.  160;  Phillips  v.  Phillips,  Freem.  11;  1  Ch.  Cas.  292;  Brown  v.  Sel- 
wyn,  Cas.  t.  Talb.  203;  3  Bro.  P.  C.  607;  2  Story's  Eq.  Jur.  §  1209. 

»  Pusey  V.  Clemson,  9  S.  &  R.  204;  Griffith  v.  Chew,  8  S.  &  R.  32;  Hill 
on  Trustees,  172,  notes  (4th  Am.  ed.). 

*  2  Story's  Eq.  Jur.  §§  1250,  1251;  Russell  v.  Clark,  7  Cranch,  09;  Mc- 
Call  V.  Harrison,  1  Brock.  126;  Buck  v.  Swazey,  35  Me.  52;  Riddle  v.  Mande- 
ville,  5  Cranch,  329;  Anon.  1  Vem.  162;  Newman  v.  Barton,  2  Vem.  205; 
Noel  V.  Robinson,  1  Vem.  94;  White  School  House  v.  Post,  31  Conn.  240; 
Boddy  V.  Lefevre,  1  Hare,  602,  n. 

Vol.  I.— 27  417 


§  245.]  TRUSTS    BY   EQUITABLE    CONSTRUCTION.     [cHAP.  VII. 

without  authority  are  administrators  de  son  tort.  Thus  an  ad- 
ministrator has  no  right  to  interfere  with  the  real  estate  of  an 
intestate  unless  it  is  wanted  to  pay  debts;  and  if  he  assume  to 
act  in  relation  to  the  real  estate  as  a  trustee,  those  interested 
may  treat  him  as  such,  and  he  cannot  demur  to  a  bill  charging 
him  with  neglect  of  duty,  and  praying  for  his  removal.^  If  one 
enters  upon  an  infant's  lands,  and  takes  the  rents  and  profits, 
he  may  be  charged  as  a  guardian  or  trustee,^  and  so  if  one  takes 
personal  property.^  If  a  deceased  person  holds  money  or  other 
property  in  trust  for  another,  and  his  heir,  executor,  adminis- 
trator, or  other  person  assume  possession  of  such  property,  a 
constructive  trust  will  be  imposed  upon  them.^  (a)    During  the 

1  Le  Fort  v.  Delafield,  3  Edw.  31;  McCoy  v.   Scott,   2  Rawle,  222; 
Schwartz's  Estate,  14  Penn.  St.  42;  People  v.  Houghtaling,  7  Cal.  348. 

*  Wyllie  V.  Ellice,  1  Hare,  505;  Drury  v.  Connor,  1  H.  &  G.  220;  Bloom- 
field  V.  Eyre,  8  Beav.  250. 

3  Chaney  v.  Smallwood,  1  Gill,  367;  Goodhue  v.  Barnwell,  Rice,  Eq.  198; 
Bennett  i-.  Austin,  81  N.  Y.  308. 

*  White  School  House  v.  Post,  31  Conn.  248;  People  v.  Houghtaling, 
7  Cal.  348. 

(o)  A  trustee  de  son  tort,  although  without   fraudulent    intent,    turned 

a  constructive  trustee,  differs  mate-  over  to  the  life  beneficiary  a  large 

rially  from  a  trustee  in  invitum  from  amount   of   trust   securities,  it  has 

the  fact  that  he  does  not  deny  the  been  held  that  the  life  beneficiary 

beneficial  ownership  of  the  cestui,  became  a  trustee  de  son  tort  in  the 

He  holds  or  uses  the  property  in  absence  of  evidence  that  she  denied 

recognition  of  this  beneficial  owner-  the  trust  or  acted  in  hostility  to  it. 

ship,  but  without  the  legal  right  or  "Not  having  acted   in  hostility  to, 

authority  to  do  so.    He  is  a  sort  of  or  in  fraud  of,  the  trust,  she  may  be 

de  facto  trustee  who  is  not  allowed  to  said  to  have  constituted  herself  by 

escape  the  responsibilities  and  lia-  her  acts  a  trustee  de  son  tort  of  the 

bihties  which  he  has  voluntarily  as-  trust   properties.      That   is   to   say 

Bumed.    Thornton  v.  Gilman,  67  N.  there  had  been  such  a  voluntary  as- 

H.  392;  Lehmann  v.  Rothbarth,  111  sumption  of  responsibilities  by  her 

111.  185;  Bailey  v.  Bailey,  67  Vt.  494;  with  respect  to  the  trust  estate,  or  to 

In  re  Mitchell's  Will,  74  Vt.   186,  a  part  thereof,  as  to  estop  her  and 

195;  Putnam  v.  Lincoln  Safe  Dep.  the    representatives    of    her    estate 

Co.,  191  N.  Y.  166,  185;  Roggen-  from  denying  an  equal  and  continu- 

kamp  V.  Roggenkamp,  68  Fed.  605;  ous  accountability  with  the  trustee, 

Huntley  v.  Denny,  65  Vt.  185.    Thus  when  called  upon  by  those  entitled 

■where    a    trustee    wrongfully    but  to  assert  claims  to  the  estate."    Put- 

418 


CHAP.  VII. J        TRUSTEE  DE  SON  TORT.  (§  246. 

possession  and  management  by  such  constructive  trustees  they 
are  subject  to  the  same  rules  and  remedies  as  other  trustees; ' 
and  they  cannot  avoid  their  liability  by  showing  that  they  were 
not  in  fact  trustees,-  nor  can  they  set  up  the  statute  of  limita- 
tions.' (a)  Of  course,  such  unauthorized  persons  will  always  be 
liable  to  be  deprived  of  the  possession  at  the  suit  of  those  bene- 
ficially interested,  and  they  will  be  liable  for  all  the  costs,  ex- 
penses, and  damages  which  their  unauthorized  intermeddling 
may  have  occasioned.  Still  there  may  be  cases  where  an  un- 
authorized person  may  interfere  from  necessity  to  preserve  and 
protect  the  property.  In  such  cases  courts  of  equity  have 
power  to  do  exact  justice  by  decrees  as  to  costs,  compensation, 
and  other  similar  matters.  In  all  cases  a  person  beneficially 
interested  coming  into  equity  must  do  equity,  and  join  all  who 
have  interfered  with  the  possession;  and  he  cannot  proceed 
against  one  alone  as  at  law  for  a  trespass,  and  compel  one  to 
bear  the  whole  burden  of  the  wrongful  intrusion."* 

§  246.  If  an  agent  is  employed  by  a  trustee  and  thus  comes 
into  possession  of  the  property,  he  will  be  accountable  to  his 

'  Wilson  V.  Moore,  1  Myl.  &  K.  127.  [  Thornton  v.  Gilman,  67  N.  H. 
392.] 

»  Rackham  v.  SiddaU,  1  Mac.  &  G.  607;  2  Hall  &  T.  44;  16  Sim.  297; 
Hope  V.  Liddell,  21  Beav.  183. 

'  Goodhue  v.  Barnwell,  Rice,  Eq.  198.  [Putnam  v.  Lincoln  Safe  Dep. 
Co.,  191  N.  Y.  166,  185;  Soar  v.  Ashwell,  [1893]  2  Q.  B.  390;  Easterly  v. 
Barber,  65  N.  Y.  252,  259.] 

*  Wyllie  V.  EUice,  6  Hare,  515;  Phene  v.  Gillon,  5  Hare,  5. 

nam  v.  Lincoln  Safe  Deposit  Co.,  191  his  copartner  who  had  notice  of  this 

N.  Y.  166,  185.  misuse  of  trust  property  has  been 

This  class  of  trustees  has  been  held  to  be  chargeable  as  a  trustee  de 

held    to    include    those    who    with  son  tort.    Russell  v.  McCall,  141  N. 

knowledge  of  the  trust  participate  Y.  437;  Penn  v.  Fogler,  182  111.  76, 

with  the  express  trustee  in  an  un-  96. 

authorized  use  of  the  trust  property,  (a)  A  trustee  of  this  sort,  like  an 

without,  however,  denying  the  ben-  express  trustee,  is  incapacitated  from 

eficial  interest  of  the  cestui.     Thus  purchasing  for  himself  at  a  tax  sale 

where  a  surviving  partner  without  of  the  "trust"  property.    Thomtott 

proper  authority  lent  the  assets  of  v.  Gilman,  67  N.  H.  392. 
the  late  firm  to  another  partnership, 

419 


§  246  a.]        TRUSTS    by    equitable    construction,     [chap.  VII. 

employer,  and  will  not  be  responsible  as  a  constructive  trustee.^ 
But  if  such  agent  should  act  fraudulently  or  collusively  he 
might  be  made  a  trustee  by  construction,  and,  as  such,  account- 
able to  the  cestui  que  trust?  (a) 

§  246  a.  If  a  vendor  undertakes  to  sell  a  good  title  to  land 
for  a  valuable  consideration,  and  his  title  is  defective,  but  he 
afterwards  obtains  a  perfect  title,  equity  will  compel  him  to 
hold  it  in  trust  for  his  vendee.^    If,  however,  such  vendor  had 

1  Keane  v.  Robarte,  4  Madd.  332;  Nickolson  v.  Knowles,  5  Madd.  47; 
Myler  v.  Fitzpatrick,  6  Madd.  360;  Davis  v.  Spurling,  1  R.  &  M.  64;  Tarn. 
199;  Crisp  V.  Spranger,  Nels.  109;  Saville  v.  Tancred,  3  Swanst.  141;  Fyler 
V.  Fyler,  3  Beav.  550;  Maw  v.  Pearson,  28  Beav.  196;  Lockwood  v.  Abdy, 
24  Sim.  437;  Ex  parte  Burton,  3  Mont.,  D.  &  De  Gex,  364;  Re  Bunting, 
1  Ad.  &  El.  467. 

2  Fyler  v.  Fyler,  3  Beav.  550;  Att.  Gen.  v.  Leicester,  7  Beav.  171;  Hardy 
V.  Caly,  33  Beav.  365;  Bridgman  v.  Gill,  24  Beav.  302;  Portlock  v.  Gardner, 
1  Hare,  606;  Ex  parte  Woodin,  3  Mont.,  D.  &  De  G.  399;  Bodenham  v.  Hos- 
kyns,  2  De  G.,  M.  &  G.  903;  Panell  v.  Hurley,  2  Coll.  241;  AUeyne  v.  Darcy, 
4  Ired.  Ch.  199,  5  Ired.  Ch.  56. 

3  Clark  V.  Martin,  49  Penn.  St.  299;  Hope  v.  Stone,  10  Minn.  14;  Doyle 
V.  Peerless,  44  Barb.  239;  Kelley  v.  Jenness,  50  Maine,  455;  Cobb  v.  Stew- 
art, 4  Met.  (Ky.)  255;  Dalheguey  v.  Tabor,  22  Cal.  279;  Wasby  v.  Foreman, 
30  Cal.  90;  Kane  County  v.  Herrington,  50  111.  232. 

(a)  A  person  employed  by  the  breach  of  trust  as  agent  of  the  tniB- 

trustee  as  agent  may  become  trustee  tee  does  not  make  him  trustee  de  son 

de  son  tort,  i.  e.,  accountable  to  the  tort,  although  he  may  be  liable  in 

cestui  as  a  trustee,  but  only  when  he  some  form  to  the  cestui.    Barnes  v. 

has  been  given  or  has  assumed  the  Addy,  9  Ch.  244.  See  Blyth  v.  Flad- 

control  of  trust  property  to  an  ex-  gate,  [1891]  1  Ch.  337;  Brinsden  v. 

tent  that  the  trustee  had  no  right  to  WiUiams,  [1894]  3  Ch.  185.   A  solic- 

delegate  control.     In  In  re  Barney,  itor  employed  by  the  trustee  in  re- 

[1892]  2  Ch.  265,  it  was  said  to  be  gard  to  trust  matters  and  accepting 

essential  to  the  character  of  a  trus-  payment  for  his  services  out  of  trust 

tee  de  son  tort,  "that  he  should  have  funds,  knowing  at  the  time  that  the 

some  trust  property  either  actually  trustees  had  been  guilty  of  a  breach 

vested  in  him,  or  so  far  under  his  of  trust,  does  not  hold  the  payment 

control  that  he  has  nothing  to  do  as  constructive  trustee  when  he  has 

but  require  that,   perhaps  by  one  no  notice  that  the  trustee  had  been 

process,    perhaps    by    another,    it  guilty  of  such  a  breach  of  trust  as 

should  be  vested  in  him."  See  Soar  v.  would  preclude  him  from  using  trust 

Ashwell,   [1893]  2  Q.  B.  390.     The  funds  for  the  payment.    In  re  Blun- 

mere  fact  of  his  participation  in  a  dell,  40  Ch.  Div.  370. 

420 


CHAP.  VII.]    TRUSTS    FOU   SURETIES    AND    ASSIGNEES.       [§  247a. 

conveyed  the  land  with  full  covenants  of  warranty,  the  title 
which  he  afterwards  obtains  will  enure  for  the  benefit  of  his 
grantee,  and  the  vendor  will  be  estopped  by  his  covenants  from 
setting  up  his  after-acquired  title  against  his  vendee.^  And 
if  a  purchaser  of  land  with  notice  of  a  prior  mortgage  after- 
wards sells  the  same  to  an  innocent  purchaser  for  its  full  value, 
equity  will  compel  him  to  hold  the  proceeds  in  trust  for  the 
mortgagee.^  So,  if  one  procures  and  puts  on  record  a  deed  of 
land  with  notice  of  a  prior  deed  and  in  fraud  of  a  prior  pur- 
chaser, equity  will  compel  him  to  hold  the  legal  title  in  trust  for 
the  first  grantee.'  So,  if  a  person  sells  stock,  and  it  is  conveyed 
in  such  a  manner  that  the  conveyance  is  void  and  the  legal 
title  is  still  in  the  vendor,  he  will  hold  it  in  trust  for  the  actual 
vendee,  and  he  may  be  compelled  to  take  the  title  and  assume 
the  burdens.^ 

§  247.  Where  a  person  has  possession  of  title-deeds  or  other 
documents  in  relation  to  property,  and  other  persons  are  inter- 
ested in  the  same  property,  and  claim  title  through  or  under 
the  same  papers,  the  person  having  the  possession  of  the  papers 
is  a  constructive  trustee  for  the  other  persons  interested  in  the 
same  property,  and  a  court  of  equity  will  compel  him  to  pro- 
duce the  deeds  or  papers  at  the  suit  of  those  claiming  an  interest 
in  the  common  property.^ 

§  247  a.  If  a  person  becomes  surety  for  the  debt  of  another, 
and  the  creditor  holds  mortgages  or  other  securities  from  the 
debtor  for  the  same  debt,  the  surety,  if  he  pay  the  debt,  has 
a  right  to  claim  that  the  creditor  shall  hold  the  securities  in 
trust  for  him;  in  other  words,  the  surety  upon  paying  the  debt 
is  subrogated  into  the  rights  of  the  original  creditor;  ^  and  if  an 

'  Somes  t'.  Skinner,  3  Pick.  51;  \Miite  v.  Patten,  24  Pick.  324;  2  Smith, 
Lead.  Cases  (4  Amer.  ed.)  550;  Nash  v.  Spofford,  8  Met.  192. 

2  Moshier  v.  Knox  College,  32  111.  155. 

3  Troy  City  Bank  ;;.  Wilcox,  24  Wis.  671. 

*  Brown  v.  Black,  L.  R.  15  Eq.  367. 

*  Lewin  on  Trusts,  156,  157  (5th  Lond.  ed.). 

*  Garnsey  v.  Gardner,  4  Maine,  167. 

421 


§  247  a.]       TRUSTS    by    equitable   construction,    [chap.  VII. 

assignor  receives  payment  for  a  chose  in  action  which  he  has 
assigned,  he  holds  the  proceeds  in  trust  for  the  assignee.^  So, 
if  one  sells  the  property  of  another  and  deposits  the  money  in 
bank  in  his  own  name,  upon  notice  to  the  bank,  by  the  owner  of 
the  property,  of  the  facts,  and  a  demand  for  the  money,  the 
bank  becomes  a  quasi  or  constructive  trustee  for  the  true 
owner.^ 

'  Post,  §  438;  Fortescue  v.  Bamett,  3  Myl.  &  K.  36. 

*  Bank  of  Wellsborough  v.  Bache,  71  Penn.  St.  213;  Arnold  v.  Macun- 
gie  Bank,  id.  287;  Twitchell  v.  Drury,  25  Mich.  393;  Campan  v.  Campan, 
id.  127.  [  See  supra,  §  122,  as  to  the  bank's  lien  upon  deposits  not  known  to 
be  trust  funds.] 


422 


CHAP.  VIII.]  POWERS   THAT    ARE   TRUSTS.  (§  248. 


CHAPTER  VIII. 

TRUSTS  THAT  ARISE   BT   CONSTRUCTION   FROM   POWERS. 

§  248.  The  nature  of  powers  that  imply  a  trust. 

§  249.  Court  will  execute  such  powers  as  trusts. 

§§  250,  251.     Instances  of  powers  which  the  court  will  execute  as  trusts. 
§  252.  Instances  of  powers  that  are  not  trusts. 

§  253.  Where  the  power  is  too  uncertain. 

§  254.  The  power  must  be  executed  as  given  or  it  will  remain  a  trust 

to  be  executed  by  the  court. 
§§  255,  256.     In  what  manner  the  court  will  execute  a  trust  arising  out  of  a 

power. 
§  257.  Whether  courts  will  distribute  per  stirpes  or  per  capita. 

§  258.  And  whether  to  those  living  at  the  death  of  donor  or  of  the 

donee. 

§  248.  Property  is  sometimes  given  to  a  person  with  a 
power  to  dispose  of  it  for  a  particular  purpose,  or  to  a  particular 
class  of  persons,  or  to  certain  persons  to  be  selected  or  desig- 
nated by  the  donee  from  a  particular  class.  If  the  donee  exe- 
cutes the  power  and  disposes  of  the  property,  or  designates  or 
selects  the  persons  who  are  to  take  under  the  gift,  it  goes  as 
directed,  and  there  is  no  great  room  for  doubt  or  question; 
but  if  the  donee  refuses  or  neglects  to  execute  the  power,  it 
becomes  a  grave  inquiry  whether  the  persons  in  whose  favor 
the  power  might  have  been  executed  have  any  interest  in  the 
property,  or  any  remedy  for  the  non-exercise  of  the  power  by 
the  first  taker  or  donee.  In  dealing  with  the  cases  that  have 
arisen  upon  these  inquiries,  courts  have  distributed  powers  into 
mere  powers,  and  powers  coupled  with  a  trust,  or  powers  which 
imply  a  trust}  Mere  pmvers  are  purely  discretionary  with  the 
donee:  he  may  or  may  not  exercise  or  execute  them  at  his  sole 

'  Brown  v.  Higgs,  8  Ves.  574;  White  v.  Wilson,  1  Drew.  298. 

423 


§248. 


TRUSTS    IMPLIED    FROM    POWERS.  [CIIAP.  VIII. 


will  and  pleasure,  and  no  court  can  compel  or  control  his  dis- 
cretion, or  exercise  it  in  his  stead  and  place,  if  for  any  reason 
he  leaves  the  powers  unexecuted.^  (a)  If  the  donee  executes 
the  powers,  but  executes  them  in  a  defective  manner,  courts 
may  aid  the  execution  and  supply  the  defects,  but  they  cannot 
exercise  or  execute  mere  naked  powers  conferred  upon  a  donee.^ 
It  is  different  with  powers  coupled  with  a  trust,  or  powers 
which  imply  a  trust.  In  this  class  of  cases  the  power  is  so  given 
that  it  is  considered  a  trust  for  the  benefit  of  other  parties;  and 
when  the  form  of  the  gift  is  such  that  it  can  be  construed  to 

1  Greenough  v.  Welles,  10  Gush.  .576;  Eldredge  v.  Heard,  106  Mass.  582. 
[  Sayer  v.  Humphrey,  216  111.  426.] 

2  Wilkinson  v.  Getty,  13  Iowa,  1.57;  Arundell  v.  Philpot,  2  Vem.  69; 
Tompkyn  v.  Sandys,  2  P.  Wms.  228,  n.;  Bull  ;;.  Vardy,  1  Ves.  Jr.  272. 
[  Mutual  Life  Ins.  Co.  v.  Everett,  40  N,  J.  Eq.  .345;  In  re  Courtier,  34  Ch. 
Div.  136;  Larkin  v.  Wickoff,  72  A.  98  (N.  J.  Ch.  1909).]  And  even  if  a  party 
intended  to  execute  a  power,  but  is  prevented  by  sudden  death,  the  court  will 
not  execute  the  power.  Pigott  v.  Penrice,  Com.  250;  Gilb.  Eq.  138;  Sugd. 
on  Powers,  392. 


(a)  Every  power  which  is  to  be 
exercised  solely  for  the  benefit  of 
others  than  the  donee  is  to  some  ex- 
tent a  trust,  even  though  the  donor 
has  vested  in  the  donee  the  absolute 
right  to  decide  whether  or  not  he 
shall  execute  it.  Although  the  court 
cannot  compel  the  donee  of  such  a 
power  to  exercise  it,  yet  if  he  at- 
tempts to  do  so,  the  courts  will  see 
that  he  has  not  used  the  power  to 
gain  an  advantage  for  himself  or  for 
anybody  not  included  in  the  class  of 
those  for  whose  benefit  he  was  au- 
thorized to  exercise  it.  Degman  v. 
Degman,  98  Ky.  717;  In  re  Perkins, 
[1893]  1  Ch.  283;  Whelan  v.  Palmer, 
39  Ch.  Div.  648;  In  re  Kirwan's 
Trusts,  25  Ch.  Div.  373;  Tempest  v. 
Camoys,  21  Ch.  Div.  571.  See  also 
Lovett  V.  Fqmham,  169  Mass.  1; 
Price  V.  Bassett,  168  Mass.  598; 
424 


Read  v.  Patterson,  44  N.  J.  Eq.  211. 
Nor  can  he  delegate  the  power. 
Hood  V.  Haden,  82  Va.  588.  Hutch- 
inson V.  Tottenham,  [1898]  1  Ir. 
403;  Cramton  v.  Rutledge,  157  Ala. 
141. 

In  England  a  donee  of  a  power  of 
appointment  with  no  duty  imposed 
upon  him  of  making  the  appoint- 
ment, may  extinguish  the  power  by 
release  or  by  contract  not  to  execute 
it.  Conveyancing  Act,  1881,  §52 
(44  and  45  Vict.  c.  41);  In  re  Chis- 
holm's  Settlement,  [1901]  2  Ch.  82; 
In  re  Somes,  [1896]  1  Ch.  2.50;  In 
re  Radcliffe,  [1892]  1  Ch.  227; 
Smith  V.  Houblon,  26  Beav.  482. 
But  it  has  been  held  that  if  there  is 
coupled  with  the  power  a  duty  of 
e.xercising  it,  the  power  cannot  be 
released.  Saul  v.  Pattinson,  55  L.  J. 
Ch.  831;  726  Eyre,  49  L.  T.  259. 


CHAP.  VIII.]  POWERS  THAT   ARE  TRUSTS.  [§  248. 

be  a  trust,  the  power  becomes  imperative,  and  must  be  executed. 
Courts  will  not  allow  a  clear  trust  to  fail  for  want  of  a  trustee; 
nor  will  they  allow  a  trust  to  fail  by  reason  of  any  act  or  omission 
of  the  trustee;  therefore,  courts  will  not  allow  a  trust  to  fail, 
or  to  be  defeated  by  the  refusal  or  neglect  of  the  trustee  to 
execute  a  power,  if  such  power  is  so  given  that  it  is  reasonably 
certain  that  the  donor  intended  that  it  should  be  exercised. 
There  are  mere  powers  and  mere  trusts.  There  are  also  powers 
which  the  party  to  whom  they  are  given  is  intrusted  with  and 
required  to  execute.  Courts  consider  this  last  kind  of  power 
to  partake  so  much  of  the  character  of  a  trust  to  be  executed, 
that  they  will  not  allow  it  to  fail  by  the  failure  of  the  donee  to 
execute  it,  but  will  execute  it  in  the  place  of  the  donee.^  (a) 

»  Burgess  i'.  Wheate,  1  Wm.  Black.  162;  Sugd.  on  Pow.  .39.3-39S;  Lucas 
V.  Lockhart,  10  Sm.  &  M.  466;  Harrison  v.  Harrison,  2  Grat.  1;  Greenough 
V.  Welles,  10  Gush,  576;  Erickson  v.  Willard,  1  N.  H.  217;  Harding  v.  Glyn, 

1  Atk.  496;  Cruwys  v.  Colman,  9  Ves.  319;  Forbes  v.  Ball,  3  Mer.  437;  Witts 
V.  Boddington,  3  Bro.  Ch.  95;  Walsh  v.  Wallinger,  2  R.  &  My.  78;  Grieveson 
V.  Kersopp,  2  Keen,  654;  Jones  i».  Torin,  6  Sim.  255;  Martin  v.  Swannell, 

2  Beav.  249;  Fenwick  v.  Greenwell,  10  Beav.  412;  Fordyce  v.  Brydges,  10 
Beav.  90;  2  Phill.  497;  Burrough  v.  Philcox,  5  My.  &  Cr.  73;  Falkner  v. 
Wynford,  15  L.  J.  Ch.  8;  9  Jur.  1006;  Penny  v.  Turner,  15  Sim.  368;  2  Phill. 
493;  Alloway  v.  Alloway,  4  Dr.  &  War.  380;  Salusbury  i'.  Denton,  3  K.  &  J. 
535;  Joel  v.  Mills,  id.  474;  Reid  v.  Reid,  25  Beav.  469;  Brown  v.  Higgs,  8 
Ves.  574;  Babbitt  v.  Babbitt,  26  N.  J.  Eq.  44.  In  this  case  Lord  Eldon  said, 
if  the  power  be  one  which  it  is  the  duty  of  the  party  to  execute,  made  his 
duty  by  the  requisition  of  the  will,  put  upon  him  as  such  by  the  testator, 
who  has  given  him  an  interest  extensive  enough  to  enable  him  to  discharge  it, 
he  is  a  trustee  for  the  exercise  of  the  power,  and  not  as  having  a  discretion 
whether  he  will  exercise  it  or  not;  and  the  court  adopts  this  principle  as  to 
trusts,  and  will  not  permit  his  negligence,  accident,  or  other  circumstances 
to  disappoint  the  interest  of  those  for  whose  benefit  he  is  called  upon  to  exe- 
cute it.  In  Att.  Gen.  v.  Downing,  Wilm.  23,  Ld.  Ch.  J.  Wilmot  said,  as  to 
the  objection  that  those  powers  are  personal  to  the  trustees,  and  by  their 
death  become  unexecutable,  they  are  not  powers  but  trusts,  and  there  is  a 
very  essential  difference  between  them.  Powers  are  never  imperative; 
they  leave  the  acts  to  be  done  at  the  will  of  the  party  to  whom  they  are 
given.  Trusts  are  always  imperative,  and  are  obligatory  upon  the  con- 
science of  the  party  intrusted.     The  court  supplies  the  defective  execution 

(a)  It  is  frequently  difficult  to  to  the  donee  of  a  power  was  intended 
determine  whether  a  diBcretion  given     to    be    the    uncontrolled    right    to 

425 


§  248.] 


TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 


Lord  Hardwicke  observed  that  such  powers  ought  rather  to  be 
called  trusts  than  powers.^    In  all  cases  these  powers  or  trusts 

of  powers,  but  never  the  non-execution  of  them ;  for  they  are  not  meant  to 
be  optional.  But  a  person  who  creates  a  trust  means  it  shall  be  executed 
at  all  events.  The  individuals  named  as  ti-ustees  are  only  the  nominal 
instruments  to  execute  that  intention,  and  if  they  fail,  either  by  death, 
or  by  being  under  disability,  or  by  refusing  to  act,  the  constitution  has 
provided  a  trustee.  Where  no  trustees  are  appointed  at  all,  the  court 
assumes  the  office.  There  is  some  personahty  in  every  choice  of  trustees, 
but  this  personality  is  res  unius  aetatis,  and  if  the  trust  cannot  be  executed 
through  the  medium  which  was  in  the  primary  view  of  the  testator,  it  must 
be  executed  through  the  medium  which  the  constitution  has  substituted  in 
his  place.  Brook  v.  Brook,  3  Sm.  &  Gif.  280;  Withers  v.  Yeadon,  1  Rich. 
Ch.  324;  Miller  v.  Meetch,  8  Barr,  417;  Gibbs  v.  Marsh,  2  Met.  243;  Grimke 
V.  Grimke,  1  Des.  Eq.  375,  n. 

1  Godolphin  v.  Godolphin,  1  Ves.  23. 


choose  between  execution  or  non- 
execution,  or  a  right  to  decide,  in  the 
exercise  of  an  honest  judgment, 
when  and  to  what  extent  the  power 
should  be  exercised.  If  the  former 
is  the  case  the  courts  cannot  inter- 
fere in  case  of  non-execution,  for 
there  is  no  trust  until  execution  is 
attempted.  Towler  v.  Towler,  142 
N.  Y.  371.  See  also  Condit  v.  Rey- 
nolds, 66  N.  J.  Law,  242;  Smith  v. 
Floyd,  108  N.  Y.  S.  775,  124  App. 
Div.  277. 

If  it  was  intended  to  impose  upon 
the  trustee  the  duty  of  exercising  the 
power  when  in  his  honest  judgment 
the  proper  time  arrives  or  to  the  ex- 
tent that  the  circumstances  require 
in  order  to  accomplish  the  intention 
of  the  donor,  then  the  courts  will 
compel  the  exercise  of  the  power  in  a 
proper  manner  and  at  the  proper 
time  if  the  trustee  arbitrarily  de- 
clines or  neglects  to  act,  provided 
the  beneficiaries  are  clearly  defined. 
Smith  V.  Floyd,  140  N.  Y.  337.  See 
Re  Stanger,  64  L.  T.  693;  Dillingham 
V.  Martin,  61  N.  J.  Eq.  276;  Cutter 

426 


V.  Burroughs,  100  Me.  379.  The  rule 
is  stated  as  follows  by  Jessel,  M.  R., 
in  Tempest  v.  Camoys,  21  Ch.  Div. 
571.  "It  is  settled  law  that  when  a 
testator  has  given  a  pure  discretion  to 
trustees  as  to  the  exercise  of  a  power, 
the  Court  does  not  enforce  the  exer- 
cise of  the  power  against  the  wish  of 
trustees,but  it  does  prevent  them  from 
exercising  it  improperly.  The  Court 
says  that  the  power,  if  exercised  at 
all,  must  be  properly  exercised.  .  .  . 
But  in  all  cases  whei'e  there  is  a 
trust  or  duty  coupled  with  the  power 
the  Court  will  then  compel  the  trus- 
tees to  carry  it  out  in  a  proper  man- 
ner and  within  a  reasonable  time." 

But  the  court  will  not  interfere 
with  the  trustee's  honest  discretion 
as  to  the  particular  time  or  manner 
of  his  bona  fide  exercise  of  the  power. 
Re  Burrage,  62  L.  T.  752;  Dick  v. 
Harby,  48  S.  C.  516.  As  to  the 
court's  control  of  discretionary  pow- 
ers of  trustees,  see  infra,  §  511,  note. 

In  New  York  it  has  been  provided 
by  statute  that  every  trust  power  is 
to  be  construed  as  imperative  "un- 


CHAP.  VIII.] 


POWERS  THAT   ARE   TRUSTS. 


(§  249. 


must  be  construed  according  to  the  intention  of  the  parties, 
to  be  gathered  from  the  whole  instrument.' 

§  249.  In  all  cases  where  parties  have  an  imperative  power  or 
discretion  given  to  them,  and  they  die  in  the  testator's  lifetime,' 
or  decline  the  trust  or  office,^  or  disagree  as  to  the  execution 
of  it,^  or  do  not  execute  it  before  their  death,^  or  if  from  any 
other  circumstance  ^  the  exercise  of  the  power  by  the  party  in- 
trusted with  it  becomes  impossible,  the  court  will  imply  a 

»  Kerr  v.  Verner,  66  Penn.  St.  326;  Guion  v.  Pickett,  42  Miss.  77. 

'  Maberly  i;.  Turton,  14  Ves.  499;  Att.  Gen.  v.  Downing,  Wilm.  7;  Amb. 
550;  Att.  Gen.  v.  Hickman,  2  Eq.  Gas.  Ab.  193. 

»  Izod  V.  Izod,  32  Beav.  242;  Doyley  v.  Att.  Gen.,  2  Eq.  Gas.  Ab.  194; 
Gude  V.  Worthington,  3  De  G.  &  Sm.  389. 

*  Wainwright  v.  Waterman,  1  Ves.  Jr.  311;  Moseley  v.  Moseley,  t.  Finch, 
53. 

»  Harding  v.  Glyn,  1  Atk.  469;  Croft  v.  Adam,  12  Sim.  639;  Hewett  v. 
Hewett,  2  Eden,  332;  Flanders  v.  Clark,  1  Ves.  10;  Grieveson  v.  Kirsopp, 
2  Keen,  653. 

•  Att.  Gen.  «;.  Stephens,  3  M.  &  K.  347. 


less  its  execution  or  non-execution  is 
made  expressly  to  depend  on  the  will 
of  the  grantee."  IV  Consol.  Laws 
[1909],  p.  3405,  §  157;  Smith  v. 
Floyd,  140  N.  Y.  337;  And  it  has 
several  times  been  held  that  execu- 
tors may  execute  a  testamentary 
power  where  no  donee  of  the  power 
was  named.  Sweeney  v.  Warren, 
127  N.  Y.  426;  Drake  v.  Paige,  127 
N.  Y.  562;  Taber  v.  Willetts,  37  N. 
Y.  S.  233,  1  App.  Div.  285  (affirmed, 
153  N.  Y.  663);  Lesser  v.  Lesser,  32 
N.  Y.  S.  167.  See  also  Bradt  v. 
Hodgdon,  94  Me.  559. 

When  the  purpose  for  which  a 
power  was  given  has  been  accom- 
plished or  has  failed,  the  power 
ceases.  Trask  v.  Sturges,  170  N.  Y. 
482.  But  a  power  of  sale  given  to  a 
trustee  may  continue  after  the  main 
trust  has  terminated  if  such  was  the 


intention  of  the  donor.  Binns  v. 
La  Forge,  191  lU.  598;  Moll  v.  Gard- 
ner, 214  111.  248,  252;  Lawrence  v. 
Lawrence,  181  111.248;  hi  reSudeley, 
[1894]  1  Ch.  334. 

In  New  York  and  in  several  other 
States  which  have  abolished  trusts 
where  the  duties  and  powers  imposed 
upon  the  person  named  as  trustee  do 
not  require  that  he  should  be  vested 
with  a  legal  estate,  many  attempted 
trusts  which  fail  as  trusts  are  valid 
as  powers  in  trust.  Syracuse  Sav. 
Bank  v.  Porter,  36  Hun,  16S;  Mur- 
ray V.  Miller,  178  N.  Y.  316;  Matter 
of  Kellogg,  187  N.  Y.  355;  Town- 
shend  v.  Frommer,  125  N.  Y.  446; 
Murphey  i-.  Cook,  11  S.  D.  47;  M(v 
Lenegan  v.  Yeiser,  115  Wis.  304; 
IV  N.  Y.  Consol.  Laws  [1909],  p. 
3391,  §99.  It  is  otherwise  in  Cali- 
fornia.   Estate  of  Fair,  132  Cal.  523. 

427 


§  250.]  TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 

trust,  and  will  put  itself  in  the  place  of  the  trustee,  and  will 
exercise  the  power  by  the  most  equitable  rule.  And  the  court 
will  act  retrospectively  in  executing  these  powers  as  quasi 
trusts;^  and  although  there  may  be  great  difficulties  and  imprac- 
ticabilities in  the  way,  yet  the  court  will  exercise  the  power  and 
enforce  the  trust:  ^  for,  if  the  trust  or  power  can  by  any  possi- 
bility be  exercised  by  the  court,  the  non-execution  by  the  party 
intrusted  shall  not  prejudice  the  party  beneficially  interested, 
or  the  cestui  que  trust.^  Thus  a  power  to  sell  given  to  an  equi- 
table tenant  for  life  may  be  executed  after  his  death  by  trustees 
under  a  decree  of  a  court  of  equity.'* 

§  250.  In  some  cases  the  donor  makes  a  direct  gift  to  one 
party,  but  subjects  the  gift  to  the  discretion  or  power  of  some 
previous  taker  or  other  party;  as  if  a  donor  limit  a  fund  "upon 
trust  for  the  children  of  A.  as  B.  shall  appoint."  In  such  case 
the  children  of  A.  take  a  vested  interest  in  the  subject  of  the 
gift,  liable  to  be  divested  by  the  exercise  of  the  power  by  B. 
Therefore,  on  the  failure  of  the  power,  the  children  of  A.  become 
as  absolutely  entitled  as  if  the  discretion  or  power  had  never 
been  given  to  B.^    But  while  the  exercise  of  the  power  is  pos- 

1  Maberly  v.  Turton,  14  Ves.  499;  Edwards  v.  Grove,  2  De  G.,  F.  &  J. 
222. 

2  Pierson  v.  Garnet,  1  Bro.  Ch.  46. 

'  Brown  v.  Higgs,  5  Ves.  505.    [  See  §  248  and  notes.] 

*  Faulkner  v.  Davis,  18  Grat.  651.  [The  court  was  of  opinion  that  the 
creator  of  the  trust  intended  the  power  of  sale  to  survive  the  hfe  tenant,  but 
to  rest  upon  his  discretion  during  his  life.]  Where  the  discretionary  power  is 
such  as  would  not  belong  to  the  court  by  virtue  of  its  jurisdiction  over 
the  subject-matter,  independent  of  the  will,  as,  for  instance,  a  power  of 
selecting  the  beneficiaries  of  testator's  bounty,  the  court  will  not  execute 
it,  and  under  the  rules  cannot  confer  it  upon  an  appointee.  In  such  cases 
It  is  executed  equitably  by  distributing  equally  among  the  distributees. 
But  where  the  discretion  applies  to  some  ministerial  act,  as  leasing  or  sell- 
ing land,  felling  timber,  and  the  like,  the  court  will  exercise  control. 
Druid  Park  Heights  Co.  v.  Oettinger,  53  Md.  63. 

*  Davy  V.  Hooper,  2  Vem.  665;  Jones  v.  Torin,  6  Sim.  255;  Fen  wick 
V.  GreenweU,  10  Beav.  412;  Hockley  v.  Mawbey,  1  Ves.  Jr.  143,  149,  150; 
Madoc  V.  Jackson,  2  Bro.  Ch.  588;  Falkner  v.  Wynford,  9  Jur.  1006;  Rhett 
V.  Mason,  18  Grat.  541;  Carson  v.  Carson,  Phill.  (N.  C.)  Eq.  57. 

428 


CHAP.  VIII.]  POWERS   THAT    ARE    TRUSTS.  [§  250. 

sible,  the  donee  of  it  may  exercise  his  discretion  in  favor  of  any 
that  he  may  select;  he  may  select  those  who  are  li\-ing  at  the 
donor's  death,  or  those  living  at  his  own  death. ^  In  other  cases 
an  estate  is  vested  in  a  donee  "  upon  trust  to  dispose  of  it  among 
the  children  of  A."  Here  the  children  of  A.  take  nothing  di- 
rectly by  way  of  the  gift,  but  their  interest  must  come  to  them 
through  the  medium  of  the  power.^  If  the  trust  is  to  dispose 
of  it  equally  among  the  children  of  A.,  the  bequest,  though  in 
form  a  power,  is  equivalent  to  a  simple  gift.^  If  the  donee  may 
distribute  or  dispose  of  it  unequally  among  the  children  of  A., 
and  no  distribution  or  disposition  is  made  by  him,  the  court 
will  execute  the  power  and  distribute  the  fund  equally  among  the 
objects  of  it.''  In  other  cases  the  property  is  \ested  in  a  donee 
with  a  discretion  as  to  the  objects  to  which,  and  also  as  to  the 
proportions  in  which,  it  is  to  be  given  over.  Of  course  the  first 
question  to  be  determined  in  all  such  cases  is,  Did  the  donor 
intend  to  give  a  mere  -power,  or  did  he  create  a  trust,  or  will 
the  court  imply  a  trust?  Lord  Cottenham  stated  the  general 
rule  deduced  from  the  cases  as  follows:  "When  there  appears 
a  general  intention  in  favor  of  a  class,  and  a  particular  intention 
in  favor  of  individuals  of  a  class  to  be  selected  by  another  person, 
and  the  particular  intention  fails  from  that  selection  not  being 
made,  the  court  will  carry  into  effect  the  general  intention  in 
favor  of  the  class.  When  such  an  intention  appears,  the  case 
arises,  as  stated  by  Lord  Eldon  in  Brown  v.  Higgs,^  of  the  power 
being  so  given  as  to  make  it  the  duty  of  the  donee  to  execute  it ; 
and,  in  such  case,  the  court  will  not  permit  the  objects  of  the 

1  Lambert  v.  Thwaites,  Law  R.  2  Eq.  151;  Woodcock  v.  Renneck,  4 
Beav.  190;  affirmed  1  Phill.  72. 

2  Ward  V.  Morgan,  5  Cold.  407. 

'  Rayner  v.  Mowbray,  3  Bro.  Ch.  234;  Phillips  v.  Garth,  id.  64. 

*  Hands  t>.  Hands,  1  T.  R.  437,  note;  Pope  v.  ^Vhitcomb,  3  Mer.  698; 
Re  White's  Trust,  1  Johns.  656;  Finch  v.  Hollinpsworth,  21  Beav.  112; 
Brown  v.  Pocock,  6  Sim.  257;  Grieveson  v.  Kirsopp,  2  Keen,  656;  Walch 
V.  Wallinger,  2  R.  &  M.  78;  Tam.  425;  1  Rev.  Stat.  N.  Y.  734;  §  100;  Domi- 
nick  V.  Sayre,  3  Sandf.  555;  Hoag  v.  Kenney,  25  Barb.  396.  [Wilson  v, 
Duguid,  24  Ch.  Div.  244.] 

6  8  Vcs.  574;  18  id.  192. 

429 


§  251.]  TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 

power  to  suffer  by  the  negligence  or  conduct  of  the  donee,  but 
fastens  upon  the  property  a  trust  for  their  benefit."  ^ 

§  251.  Thus,  where  a  testator  gave  an  estate  "to  A.  upon 
trust  (subject  to  certain  charges),  to  employ  the  remainder  of 
the  rent  for  such  children  of  B.  as  A.  should  think  most  deserv- 
ing, and  that  will  make  the  best  use  of  it,  or  for  the  children  of 
his  nephew,  C,  if  any  there  are,  or  shall  be,"  and  A.  died  in 
the  testator's  lifetime,  it  was  held  to  be  a  trust  in  favor  of  all  the 
children  of  B.  and  C.^  So  where  a  testator  directed  certain 
property  to  remain  until  certain  contingencies,  and  then  gave 
life-estates  in  the  property  to  two  of  his  children,  with  remainder 
to  their  issue,  and  declared  that  in  case  his  two  children  had 
no  issue,  the  same  should  be  disposed  of  by  the  survivor  by 
will  among  his  nephews  and  nieces  or  their  children,  or  either 
of  them,  or  to  as  many  of  them  as  his  surviving  child  should 
think  proper,  it  was  held  to  be  a  trust  in  favor  of  the  nephews  and 
nieces  and  their  children,  subject  to  the  power  of  selection  and 
distribution  by  the  surviving  child.'  So  where  a  testator  gave 
to  B.  in  tail,  and  if  she  had  no  issue,  she  was  to  settle  the  estate 
upon  such  person  as  she  thought  fit  by  will,  "confiding"  in  her 
not  to  transfer  the  estate  from  his  nearest  family,  it  was  held  to 
be  a  trust  for  the  heir  who  was  the  nearest  family  or  relation 
within  the  meaning  of  the  will.''  And  where  a  testator  gave  his 
property  to  his  son  in  trust  to  apply  the  income  to  the  use  of 
himself  and  family,  and  to  give  by  deed  or  will  all  beyond  what 
he  should  so  apply,  unto  all  or  any  child  or  children  of  his  own 
in  such  proportions  and  in  such  manner  as  he  should  see  fit, 
and  his  son  died  having  devised  the  property  to  his  wife  with 

»  Burrough  v.  Philcox,  5  My.  &  Cr.  72;  Witts  v.  Boddington,  3  Bro.  Ch. 
95;  5  Ves.  503;  Harding  v.  Glyn,  1  Atk.  469. 

2  Brown  v.  Higgs,  4  Ves.  708;  5  Ves.  495;  8  Ves.  574;  18  Ves.  192;  2  Sugd. 
on  Pow.  176;  Longmore  v.  Broom,  7  Ves.  124;  Jones  v.  Torin,  6  Sim.  255; 
Prevost  t;.  Clark,  2  Madd.  458;  Penny  v.  Turner,  2  Phill.  473;  Fordyce  v. 
Bridges,  id.  497;  White  in  re,  John.  658. 

•  Burroughs  v.  Philcox,  5  My.  &  Cr.  73. 

*  Griffiths  V.  Evans,  5  Beav.  241. 

430 


CHAP.  VIII.]  POWERS   THAT    ARE    TRUSTS.  [§  251. 

directions  to  his  executors  to  act  under  the  will  of  his  father,  it 
was  held  to  be  a  trust  coupled  with  a  power  to  appoint  at  his 
discretion  among  his  children,  that  the  power  could  not  be 
delegated,  that  the  son's  will  was  not  an  execution  of  the  power, 
and  that  his  children  took  equally  under  their  grandfather's 
will.^  Where  a  man  gave  his  property  "wholly"  to  his  wife  to 
be  disposed  of  by  her  and  divided  among  his  children  at  her 
discretion,  the  children  took  under  the  will  and  not  as  her  heirs, 
in  default  of  any  distribution  by  her.^  And  where  a  testator 
gave  his  estate  to  his  wife  during  her  life,  and  gave  all  the 
remainder  to  his  two  brothers  A.  and  B.  who  were  also  his  exec- 
utors, "  with  full  confidence  that  they  will  dispose  of  such  resi- 
due among  our  brothers  and  sisters  and  their  children,  as  they 
shall  judge  shall  be  most  in  need  of  the  same,  this  to  be  done 
according  to  the  best  of  their  discretion;"  it  was  held  to  be  a 
trust  for  the  brothers  and  sisters  and  their  children,  to  the 
exclusion  of  A.  and  B.  and  their  children;  and  the  court  exe- 
cuted the  trust,  and  exercised  the  powers.^  Where  a  testator 
gave  his  wife  certain  property,  and  desired  her  "to  give  the 
same  unto  and  among  such  of  the  testator's  relations  as  she 
should  think  most  deserving  and  approve  of,"  after  the  death 
of  the  wife  without  appointing,  the  court  decreed  a  trust,  and 
divided  the  property  equally  among  the  relations.''  Where  a 
tenant  for  life  "is  desired  to  give  it  among  his  children  as  he 
should  think  fit,"  ^  or  the  "  residue  is  to  be  disposed  of  among  her 
children  as  she  shall  think  proper,"  ®  or  where  after  the  death 
of  testator's  wife  the  gift  "is  to  such  of  his  grandchildren  as 
she  should  appoint,"  ^  it  was  held  to  be  a  trust  for  selection  or 
distribution,  and  in  default  of  the  exercise  of  the  power  the 


»  Withers  v.  Yeadon,  1  Rich.  Eq.  324. 

*  Collins  V.  Carlisle,  7  B.  Mon.  14;  Russell  v.  Kennedy,  3  Brews.  438. 

»  Bull  I'.  Bull,  8  Conn.  47;  see  Gilbert  v.  Chapin,  19  Conn.  351;  Harper 
V.  Phelps,  21  Conn.  257. 

*  Harding  v.  Glyn,  1  Atk.  469. 
»  2  Sugd.  on  Pow.  181. 

*  Kemp  V.  Kemp,  5  Ves.  849. 

'  Witts  V.  Boddington,  3  Bro.  Ch.  95. 

431 


§  252,]  TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 

court  enforced  it  as  a  trust  and  distributed  it  equally  among  all 
the  objects  named.^  In  such  cases  the  word  "children"  will 
embrace  grandchildren  if  such  appears  to  be  the  general  intent 
of  the  donor.^  (a) 

§  252.  But  where  a  testator  empowered  his  wife  to  give 
away  £1000  of  his  estate  at  her  death,  £100  to  A.,  £100  to  B., 
and  the  rest  by  her  will,  and  she  died  without  having  executed 
the  power,  it  was  held  to  be  a  mere  power,  and  no  trust,  and 
the  court  refused  to  carry  it  into  effect.'  (b)     So  where  a  tes- 

1  Whitehurst  v.  Marker,  2  Ire.  Ch.  292;  Fowler  v.  Hunter,  2  Y.  &  J.  506; 
Longmore  v.  Brown,  7  Ves.  124;  Salusbury  v.  Denton,  3  Kay  &  J.  529; 
Kennedy  v.  Kingston,  2  J.  &  W.  431;  Davy  v.  Hooper,  2  Vem.  665;  Mad- 
dison  V.  Andrew,  1  Ves.  57;  Hockley  v.  Mawbey,  1  Ves.  Jr.  143;  Croft  v. 
Adam,  12  Sim.  639;  Brown  v.  Pocock,  6  Sim.  257;  McNeilledge  v.  Galbrath, 
8  Serg.  &  R.  43;  Harrison  v.  Harrison,  2  Grat.  1 ;  Frazier  v.  Frazier,  2  Leigh, 
642;  Cruse  v.  McKee,  2  Head,  1;  Thompson  v.  Norris,  2  N.  J.  Eq.  489;  Jecko 
V.  Lansing,  45  Mo.  167.    [  Wilson  t^.  Duguid,  24  Ch.  Div.  244.] 

'  Ingraham  v.  Meade,  3  Wall.  Jr.  32.  [  Edgerly  v.  Barker,  66  N.  H. 
434;  WiUiams  t'.  Knight,  18  R.  L  333;  Osgood  v.  Lovering,  33  Me.  464,  469.] 

»  Bull  V.  Vardy,  1  Ves.  Jr.  270;  In  re  Eddowes,  1  Dr.  &  Sm.  395.  [  See 
also  Towler  v.  Towler,  142  N.  Y.  371.] 

(a)  Such  intention  must,  it  seems,  (b)  A  power  given  to  a  life  tenant 
be  clear,  or  this  construction  be  to  sell  the  property  for  his  own  ben- 
necessary  to  make  the  grant  or  de-  efit  or  to  dispose  of  it  by  will  is  ex- 
\'ise  effective.  Ormsby  v.  Dumesnil,  tinguished  by  the  death  of  the  life 
91  Ky.  601;  Bowker  v.  Bowker,  148  tenant  without  having  exercised  it; 
Mass.  198;  Bragg  v.  Carter,  171  and  the  power  cannot  be  exercised 
Mass.  324.  See  Connor  v.  Gardner,  by  his  personal  representatives  for 
230  111.  258.  the  benefit  of  his  estate.     Bailey  v. 

As  to  the  meaning  of  the  word  Worster,   103   Me.    170;    Crawford 

"issue,"  see  Drake  v.  Drake,  134  N.  v.  Langmaid,  171  Mass.  309;  Sites  v. 

Y.  220;  Soper  v.  Brown,  136  N.  Y.  Eldredge,  45  N.  J.  Eq.  632;  Cotton 

244;  Chwatal  v.  Schreiner,  148   N.  v.  Burkelman,  142  N.  Y.  163;  Che- 

Y.  683.  ney's   Ex'r  v.  Stafford,  76  Vt.   16. 

In  a  will  by  a  testator  who  had  no  In  some  jurisdictions  statutes  have 

children  of  his  own  and  no  reason-  given  creditors  of  the  donee  of  such 

able  expectation  of  any,  the  word  a  power  the  same  rights  as  if  he  were 

"children"  has  been  held  to  mean  owner  of  the  fee.    Hood  r.  Bramlett, 

step-children.    In  re  Jeans,  72  L.  T.  105  Ala.  660;  Auer  v.  Brown,   121 

835.  Wis.   115.     But  in  the  absence  of 

432 


CHAP.  VIII. J 


POWERS    THAT    ARE    TRUSTS. 


[§  252. 


tator  gave  £30,000  to  his  wife  for  life,  to  be  distributed  at  her 
decease  to  and  amongst  such  of  his  children  and  in  such  manner 


such  statute  provisions,  creditors  of 
the  donee  of  even  an  unHmited 
power  of  disposition  cannot  reach 
the  property  until  the  power  is  exer- 
cised, and  cannot  compel  its  exer- 
cise. Jones  V.  Clifton,  101  U.  S.  225; 
Brandies  v.  Cochrane,  112  U.  S. 
344;  Ex  parte  Gilchrist,  17  Q.  B. 
Div.  521.  But  see  Morgan's  Estate, 
223  Pa.  St.  228;  Ullman  v.  Cameron, 
92  App.  Div.  (N.  Y.)  91. 

It  is  general  law  that  the  exercise 
of  an  unlimited  power  of  disposition 
gives  to  creditors  of  the  donee  of  the 
power  the  right  to  treat  the  property 
as  part  of  the  donee's  estate  for  the 
satisfaction  of  their  demands,  even 
though  he  does  not  exercise  the 
power  for  liis  own  benefit.  Olney  v. 
Balch,  154  Mass.  318;  Emmons  v. 
Shaw,  171  Mass.  410;  Loring  v.  Wil- 
son, 174  Mass.  132;  Freeman  v.  But- 
ters, 94  Va.  406;  Brandies  v.  Coch- 
rane, 112  U.  S.  344;  In  re  Lawley, 
[1902]  2  Ch.  799.  But  in  some 
States  it  has  been  held  otherwise 
where  the  power  of  appointment, 
though  general,  was  to  be  exercised 
only  by  wall.  Dunglison's  Estate, 
201  Pa.  St.  592;  Humphrey  v.  Camp- 
bell, 59  S.  C.  39;  Wales  v.  Bowdish's 
Ex'r,  61  Vt.  23. 

In  most  jurisdictions  a  life  estate 
is  not  raised  to  a  fee  contrary  to  the 
intention  of  the  donor  by  the  added 
gift  of  a  power  to  dispose  of  the  re- 
mainder. Melton  V.  Camp,  121  Ga. 
693;  Griffin  v.  Griffin,  141  lU.  373; 
Ducker  v.  Bumham,  146  111.  9; 
Paxton  V.  Paxton,  141  Iowa,  96; 
Steiflf  V.  Seibert,  128  Iowa,  746; 
Webb  V.  Webb,  130  Iowa,  457; 
Pedigo's  Ex'x  v.  Botts,  89  S.  W.  164 
VOL.  I.  —  28 


(Ky.  1905);  Dana  v.  Dana,  185 
Mass.  156;  Wel.sh  v.  Wooflbury,  144 
Mass.  542;  Kent  i;.  Morrison,  1.53 
Mass.  137;  Welsh  v.  Gist,  101  Md. 
606;  Semper  v.  Coates,  93  Minn.  76; 
Underwood  t^.  Cave,  176  Mo.  1; 
Grace  v.  Perry,  197  Mo.  550; 
Loosing  V.  Loosing,  85  Neb.  66; 
Johnson  v.  Johnson,  51  Ohio  St. 
446;  Wooster  v.  Cooper,  53  N.  J. 
Eq.  682;  Ryan  v.  Mahan,  20  R.  I. 
417;  In  re  Richards,  [1902]  1  Ch. 
76;  2  Jarman  on  Wills  (Bigelow's  6th 
Am.  ed.),  1131,  note.  See  contra 
Hood  V.  Bramlett,  105  Ala.  660; 
McKnight  v.  McKnight,  120  Tenn. 
431 ;  Hair  v.  Caldwell,  109  Tenn.  148, 
155;  Bradley  v.  Games,  94  Tenn.  27; 
Brown  v.  Strother,  102  Va.  145; 
Davis  V.  Heppert,  96  Va.  775;  Par- 
ish V.  Wayman,  91  Va.  430;  Hans- 
brough  V.  Trustees,  65  S.  E.  467  (Va. 
1909);  Randall  v.  Harrison,  109  Va. 
686. 

For  cases  where  the  life  tenant 
has  been  given  the  power  to  en- 
croach upon  the  corpus  for  support, 
see  Kennedy  i'.  Alexander,  21  App. 
D.  C.  424;  Newlin  v.  PhiUips,  60  A. 
1068  (Del.  Ch.  1905);  McGuire  t-. 
Gallagher,  99  Me.  334;  Hascltine  v. 
Shepherd,  99  Me.  495;  In  re  Davi- 
son's Trust  Estate,  103  Md.  479; 
Parker  v.  Travers,  71  A.  612  (N.  J. 
Ch.  1908);  Fiske  v.  Fiske,  26  R.  I. 
509;  Sires  v.  Sires,  43  S.  C.  266. 

Where  the  life  tenant's  power  of 
disposition  during  her  life  is  limited 
to  the  purpose  of  her  support  or 
maintenance,  even  when  the  occa- 
sion for  the  disposition  is  left  to  her 
judgment,  the  court  will  not  permit 
a  disposition  for  other  purposes  than 

433 


§  253.]  TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 

and  proportion  as  she  should  appoint,  it  was  held  to  be  a  mere 
power  which  the  court  could  not  execute  in  default  of  an  appoint- 
ment by  her.^  (o) 

§  253.  If  the  power  to  be  executed  is  so  uncertain  as  to  its 
objects,  that  a  court  of  equity  cannot  say  what  particular 
person  or  persons  or  class  of  persons  are  to  take  an  interest 
under  it  as  a  trust,  it  will  be  considered  a  mere  power  which 
cannot  be  carried  into  effect;^  or  if  the  subject-matter  to  be 

'  Marlborough  v.  Godolphin,  2  Ves.  61;  5  Ves.  Jr.  506.  In  this  case 
Lord  Hardwicke  drew  a  distinction  between  a  gift  "amongst  my  children 
as  A.  should  appoint,"  which  he  considered  a  trust,  and  a  gift  "among 
such  of  my  children  asA. should  appoint,"  which  he  considered  a  mere  power. 
This  distinction,  however,  is  not  now  acted  upon.  Crossling  v.  Crossling. 
2  Cox,  396,  is  to  the  same  effect  as  Marlborough  v.  Godolphin.  These  cases 
have  not  been  expressly  overruled,  but  they  have  not  been  followed  in  the 
later  cases,  and  if  they  were  to  come  before  the  courts  at  the  present  day,  it 
is  probable  that  they  would  be  held  to  be  implied  trusts,  and  not  mere  powers, 
as  courts  will,  if  possible,  construe  such  bequests  into  gifts  to  the  parties 
to  be  benefited.  Hill  on  Trust,  69;  2  Sugd.  on  Powers,  181;  Brown  v.  Po- 
cock,  6  Sim.  257. 

2  Stubbs  V.  Sargon,  2  Keen,  255;  Ommanny  v.  Butcher,  1  T.  &  R.  260; 

those  limited.    Hoxie  v.  Finney,  147  (a)  The    cited  case   of    Marlbo- 

Mass.  616.    Thus  she  cannot  convey  rough  v.  Godolphin  appears  to  be  now 

the  property  by  deed  of  trust;  Phil-  overruled.     Of  it  Lord  St.  Leonards 

lips  V.  Wood,  16  R.  I.  274;  nor  can  (on  Powers,  p.  592)  says:    "As  the 

she  convey  by  way  of  gift.    Terry  v.  right  to  exclude  some  does  not  pre- 

Rector,  etc.,81  N.  Y.  S.  119,  79  App.  vent    the    class    from     taking    in 

Div.    527;    Stocker   v.    Foster,    178  default  of  appointment,   it  should 

Mass.  591;  Garland  v.   Smith,   164  seem  that  if  a  case  in  the  very  terms 

Mo.  1;  Gardner  v.  Whitford,  23  R.  of  Duke  of  Marlborough  v.  Godol- 

I.  396;  Sires  v.  Sires,  43  S.  C.  266.  phin  were  now  to  occur,  it  would  be 

It  has  been  held  that  a  power  in  the  decided  that  the  children  took  as 

life  tenant  to  sell  for  her  support  tenants  in  common  in  default  of  ap- 

does  not  include  power  to  mortgage  pointments,  either  by  implication, 

for  the  same  purpose.     O'Brien  v.  which  seems  the  true  construction, 

Flint,  74  Conn.  502.     But  a  power  or  because  the  power  was  coupled 

"to  sell  or  dispose  of  any  or  all  said  with  a  trust."    This  is  approved  in 

real   estate   upon   any   terms"   has  Salusbury  v.  Denton,  3  K.  &  J.  529, 

been  held  to  include  power  to  mort-  and  in  Wilson  v.  Duguid,  24  Ch.  D. 

gage.    Jackson  v.  Everett,  58  S.  W.  244,  the  latter  case  fully  reviewing 

340  (Tenn.  1894).  the  older  authorities. 

434 


CHAP.  VIII, ]  POWERS   THAT    ARE   TRUSTS.  [§  254. 

aflFected  by  the  power  is  too  uncertain  to  be  dealt  with  by  the 
court,  a  trust  will  not  be  implied.^  And  where  there  is  an  express 
limitation  of  the  property  over  in  case  the  power  is  not  executed, 
of  course  no  trust  can  be  implied.^ 

§  254.  The  general  rule  is,  that  the  power  given  must  be 
strictly  executed  as  given,  or  it  will  remain  as  a  trust  for  the 
person  or  class  in  whose  favor  it  is  given;  thus,  if  the  donee  is 
to  dispose  of  the  property  to  such  person  of  a  particular  class 
as  she  shall  select  in  a  last  will  and  testament,  and  the  disposi- 
tion is  made  by  a  deed,  the  power  is  not  executed,  and  it  will 
be  construed  into  a  trust  for  the  whole  class,  or  will  go  over, 
if  there  is  a  gift  over  in  default  of  an  appointment  or  execution 
of  the  power.'  So  if  the  power  is  attempted  to  be  executed  in 
favor  of  a  person  or  a  class,  outside  of  the  persons  or  classes 
in  whose  favor  it  is  given,  the  execution  will  be  bad,  and  it  will 
remain  as  a  trust  for  all  those  in  whose  favor  it  was  given.* 
As  if  the  power  is  to  distribute  among  children,  it  cannot  be 
executed  by  a  distribution  among  grandchildren.^  WTiere  the 
power  is  to  distribute  among  a  certain  class,  something  must 

Wheeler  t'.  Smith,  9  How.  79;  Robinson  v.  Allen,  11  Grat.  785;  Harper  v. 
Phelps,  21  Conn.  257;  Thompson  v.  McKissick,  3  Humph.  631;  Ellis  v. 
Ellis,  15  Ala.  296.  [  Condit  v.  Reynolds,  66  N.  J.  L.  242;  Gambell  v.  Trippe, 
75  Md.  252.] 

»  Gibbs  t;.  Marsh,  2  Met.  243. 

»  Pritchard  v.  Juinchant,  Amb.  126;  5  Ves.  596,  n.;  2  Sugd.  on  Pow. 
183;  Lines  v.  Durden,  5  Fla.  51.    [  Sayer  v.  Humphrey,  216  111.  426.] 

»  Moore  v.  Dimond,  5  R.  I.  121;  Bentham  v.  Smith,  1  Cheev.  33  (2d 
part);  Halsen  v.  Kcan,  2  Taylor,  279;  Christy  v.  Pulliam,  17  111.  59;  Balteel 
V.  Plumer,  L.  R.  8  Eq.  585;  Garth  t'.  Townsend,  L.  R.  7  Eq.  220;  Thacker 
V.  Kay,  L.  R.  Eq.  408. 

*  Jarnagin  t;.  Conway,  2  Humph.  50;  Horwitz  v.  Norris,  49  Pa.  St.  219; 
Knight  j;.  Garborough,  Gilmer,  27;  Little  v.  Bennett,  5  Jones,  Eq.  156; 
Lippincott  v.  Ridgway,  3  Stockt.  526;  Varrell  v.  Wendell,  20  N.  H.  431; 
Wickesham  t;.  Savage,  58  Penn.  St.  219;  In  re  Grat  wick's  Trust,  L.  R.  1 
Eq.  117;  Carson  v.  Carson,  Phill.  Eq.  (N.  C.)  57. 

'  Horwitz  V.  Norris,  49  Penn.  St.  219;  Churchill  v.  Churchill,  L.  R.  5 
Eq.  44;  Moriarty  v.  Martin,  3  Ir.  Ch.  26.  [  Herrick  t^.  Fowler,  108  Tenn. 
410.  Even  when  all  the  children  have  died  before  the  time  for  the  execution 
of  the  power.    Smith  v.  Hardesty,  88  Md.  387.] 

4.35 


§  254.] 


TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 


be  given  to  each  one  or  the  execution  of  the  power  is  bad.^  (a) 
But  the  proportion  is  left  to  the  trustee.^    And  the  donee  of  the 

'  Ibid.;  Lippincott  v.  Ridgway,  2  Stockt.  164;  3  id.  526;  Booth  v.  Aling- 
ton,  39  Eng.  L.  &  Eq,  250.  [  Degman  v.  Degman,  98  Ky.  717.  See  contra, 
McGibbon  v.  Abbott,  10  App.  Cas.  653.]  It  eeems  that  this  is  not  the  rule 
in  Pennsylvania.    Graeflf  v.  De  Turk,  44  Penn.  St.  527. 

2  Portsmouth  v.  Shackford,  46  N.  H.  423. 


(a)  A  power  to  appoint  "to  and 
among  my  grandchildren  in  such 
shares  and  proportions  and  in  such 
manner  as  she  (the  donee)  shall 
think  right  and  proper"  has  been 
held  to  be  non-exclusive;  that  is  to 
say,  the  donee  of  the  power  could 
not  entirely  exclude  any  grandchild 
from  a  share.  Cameron  v.  Crowley, 
72  N.  J.  Eq.  681.  See  also  Degman 
V.  Degman,  98  Ky.  717;  Thrasher  v. 
Ballard,  35  W.  Va.  524;  Wright  v. 
Wright,  41  N.  J.  Eq.  382.  A  power 
to  dispose  of  property  "among  our 
children  and  grandchildren  in  such 
proportions  as  he  (the  donee)  may 
choose"  has  been  held  to  give  each 
member  of  the  class  the  right  to  a 
substantial,  though  not  an  equal, 
share  of  the  property.  Hatchett  v. 
Hatchett,  103  Ala.  556.  A  power  to 
divide  among  testator's  children  "to 
the  best  advantage,  as  she  sees  fit 
and  proper"  has  been  held  to  be  non- 
exclusive. Faloon  v.  Flannery,  74 
Minn.  38.  But  a  power  to  divide 
"among  such  of  my  children  or  their 
issue,  in  such  shares  or  proportions 
as  she  (the  donee)  may  see  proper 
and  best"  does  not  require  that  a 
share  be  given  to  every  one  of  the 
class.  McNeile's  Estate,  217  Pa.  St. 
179.  A  power  to  dispose  of  "to  and 
amongst  my  other  children  or  their 
issue  in  such  parts,  shares,  and  pro- 
portions, manner  and  form  as  my 
eaid  daughter  shall  by  deed  or  will 

436 


appoint"  has  been  interpreted  to 
give  the  donee  the  power  to  entirely 
exclude  members  of  the  class  be- 
cause the  class  was  or  might  be  so 
large  that  the  testatrix  could  not 
have  intended  that  all  should  take 
something.  In  re  Veale's  Trusts, 
4  Ch.  Div.  61. 

Whether  the  donee  of  the  power 
in  such  cases  has  the  power  to  en- 
tirely exclude  any  member  of  the 
class  is  obviously  entirely  a  ques- 
tion of  the  intention  of  the  donor  of 
the  power.  In  England  statutes  have 
changed  the  rule  as  stated  in  the 
text,  so  that  power  to  appoint  or 
distribute  to  members  of  a  class  is 
no  longer  non-exclusive,  unless  it 
appears  to  have  been  the  donor's  in- 
tention to  make  the  power  non-ex- 
clusive. 37  and  38  Vict.  c.  37.  The 
tendency  of  most  of  the  American 
courts  is  to  apply  the  same  rule 
without  the  aid  of  statutes.  Cases 
cited  supra. 

The  equitable  rule  against  "illu- 
sory" appointments  to  members  of 
a  class,  i.  e.,  appointments  of  an  un- 
substantial amount  made  for  the 
purpose  of  complying  with  the  rule 
that  every  member  of  the  class  must 
receive  something,  was  never  gener- 
ally accepted  in  America  and  has 
been  abolished  by  statute  in  Eng- 
land. Hawthorne  v.  Ulrich,  207  111. 
430;  37  and  38  Vict.  c.  37.  But  in 
Kentucky  and  Alabama  recent  divi- 


CHAP.  VIII.] 


POWERS    THAT    ARE   TRUSTS. 


[§254. 


power  cannot  execute  it  in  favor  of  himself  or  his  family,  unless 
the  terms  of  the  power  specially  authorize  him  so  to  do.^  (a) 

»  Bostick  V.  Winton,  1  Sneed,  524;  Cruae  v.  McKee,  2  Head,  1;  Holt 
t;.  Hogan,  5  Jones,  Eq.  82;  Bull  v.  Bull,  8  Conn.  47;  Cooper  v.  Cooper,  L.  R. 
8  Eq.  312. 


sions  indicate  that  the  courts  of 
those  States  would  not  regard  an 
illusory  appointment  to  one  or  more 
of  the  class  as  a  proper  execution 
of  the  power  of  appointment.  Deg- 
man  v.  Degman,  98  Ky.  717; 
Hatchett  v.  Hatchett,  103  Ala.  556. 
See  also  Stephenson  v.  Norris,  128 
Wis.  242,  259. 

A  non-exclusive  power  of  ap- 
pointment among  members  of  a  class 
may  be  properly  exercised  by  giving 
the  whole  estate  to  one  member  of 
the  class  subject  to  a  charge  or  upon 
condition  of  payment  of  a  certain 
sum  to  each  of  the  other  members. 
Allder  v.  Jones,  98  Md.  101 ;  Monjo 
V.    Woodhouse,     185    N.    Y.    295. 

(a)  Nor  will  the  donee  be  per- 
mitted to  obtain  an  advantage  for 
himself,  or  for  a  person  for  whose 
benefit  he  has  no  authority  to  exe- 
cute the  power,  by  making  a  bargain 
therefor  wnth  one  or  more  of  the 
beneficiaries  in  whose  behalf  he  has 
authority  to  execute  the  power.  Inre 
Kirwan's  Trusts,  25  Ch.  Div.  373; 
Degman  v.  Degman,  98  Ky.  717;  In 
re  Perkins,  [1893]  1  Ch.  283;  Whe- 
lan  V.  Palmer,  39  Ch.  Div.  648.  But 
where  the  donee  of  the  power  is  one 
of  the  class  among  whom  he  has  the 
power  of  appointment,  he  may  ap- 
point a  share  to  himself.  Taylor  v. 
Allhusen,  [1905]  1  Ch.  529. 

It  has  been  held  in  England  that 
the  donee  of  a  power  to  appoint  to 
members  of  a  class  who  are  to  take 
equally  in  default  of  appointment 


may  release  his  power  of  appoint- 
ment, and  the  fact  that  his  motive 
was  to  secure  a  benefit  for  himself 
does  not  render  the  release  invalid. 
In  re  Somes,  [1896]  1  Ch.  250;  In  re 
Radcliffe,  [1892]  1  Ch.  227.  See 
also  Conveyancing,  etc..  Act,  1881, 
§52  (44  and  45  Vict.  c.  41);  In  re 
Chisholm's  Settlement,  [1901]  2 
Ch.  82.  But  it  has  been  held  that  a 
power  coupled  with  a  duty  of  exer- 
cising it  cannot  be  released.  Saul  v. 
Pattinson,  55  L.  J.  Ch.  831;  Re 
Eyre,  49  L.  T.  259.  In  the  last 
cited  case.  Re  Eyre,  it  was  said: 
"A  trustee  who  has  a  power  which 
is  coupled  with  a  duty  is,  I  conceive, 
bound,  so  long  as  he  remains  a 
trustee,  to  preserve  that  power,  and 
to  exercise  his  discretion  as  circum- 
stances arise  from  time  to  time 
whether  the  power  should  be  used 
or  not,  and  he  could  no  more,  by 
his  own  voluntary  act,  destroy  a 
power  of  that  kind  than  he  can 
voluntarily  put  an  end  to  or  destroy 
any  other  trust  that  may  be  com- 
mitted to  him." 

The  donee  of  an  unlimited  power 
of  appointment  by  deed  may  dis- 
pose of  the  property  for  his  own  ben- 
efit. Phillips  V.  Pike.  106  N.  Y.  S. 
486,  121  App.  Div.  753;  Mandel  v. 
Fidelity  Trust  Co.,  12S  Ky.  239. 

It  is  settled  law  in  England  and 
in  some  States  that  when  the  donee 
of  a  general  power  of  appointment 
by  will  executes  the  power,  his  cred- 
itors have  the  right  to   treat  the 

437 


§  254.] 


TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 


Nor  can  he  delegate  the  power  or  the  execution  of  it  to  others.*  (a) 
It  must  be  executed  within  the  time  named  in  the  instrument,* 
and  if  the  appointment  is  to  be  made  at  a  person's  decease,  it 
must  be  by  will.^  It  must  also  be  executed  for  the  precise 
purpose  declared,  and  when  the  purpose  becomes  wholly  un- 
attainable the  power  ceases.* 

»  Singleton  v.  Scott,  11  Iowa,  589;  Haslen  v.  Kean,  2  Taylor,  279;  Withers 
V.  Yeadon,  1  Rich.  Eq.  324;  Carr  v.  Atkinson,  L.  R.  14  Eq.  400;  Webb  v. 
Sadler,  L.  R.  14  Eq.  .533.  [  McNeile's  Estate,  217  Pa.  St.  179;  Hutchinson 
V.  Tottenham,  [1898]  1  Ir.  403.] 

2  Cooper  ;;.  Martin,  L.  R.  3  Eq.  47. 

'  Freeland  v.  Pearson,  L.  R.  3  Eq.  658. 

*  Hetzel  V.  Hetzel,  69  N.  Y.  1;  Brown  v.  Meigs,  11  Hun,  (N.  Y.)  203. 

When  a  married  woman  is  the 
donee  of  a  power  to  convey  the  fee 
of  real  estate,  it  is  not  necessary  that 
her  husband  join  in  a  deed  made  in 
execution  of  the  power.  Young  v. 
Sheldon,  139  Ala.  444;  Antonini  v. 
Straub,  130  Ky.  10;  Armstrong  v. 
Kerns,  61  Md.  364.  See  Married 
Women's  Property  Act,  1907  (7 
Edw.  7,  c.  18). 

As  to  the  application  of  the  rule 
against  perpetuities,  see  infra,  §  383, 
note. 

As  to  execution  of  a  power  of 
appointment,  sale,  etc.,  without 
reference  to  it,  see  infra,  §  511  c. 
and  notes. 

(a)  A  power  of  appointment  in 
favor  of  minor  children  may  be 
exercised  by  an  appointment  to 
trustees  for  their  benefit.  In  re 
Paget,  [1898]  1  Ch.  290.  A  general 
power  of  appointment  may  be  exer- 
cised by  giving  the  appointee  less 
than  the  entire  legal  estate  and  a 
power  of  appointment,  either  general 
or  hmited.  McClellan's  Estate,  221 
Pa.  St.  261;  Mays  v.  Beech,  114 
Tenn.  544;  Lawrence's  Estate,  13d 
Pa.  St.  354. 


property  as  part  of  his  estate  for  the 
satisfaction  of  their  claims.  Olney 
V.  Balch,  154  Mass.  318;  Emmons 
V.  Shaw,  171  Mass.  410;  Loring  v. 
Wilson,  174  Mass.  132;  Freeman  v. 
Butters,  94  Va.  406;  Brandies  v. 
Cochrane,  112  U.  S.  344;  In  re 
Lawley,  [1902]  2  Ch.  799.  This  is 
probably  general  law  when  the 
donee  has  unlimited  power  of  ap- 
pointment by  deed  as  well  as  by 
will;  but  it  has  been  held  in  a  few 
cases  that  where  the  power  of  ap- 
pointment is  by  will  only,  the  cred- 
itors of  the  appointor  cannot  reach 
the  property.  It  is  argued  that  as 
the  appointor  had  no  power  to 
appropriate  or  appoint  to  his  own  use 
during  his  life,  the  reason  for  the 
general  rule  already  stated  fails. 
Wales  V.  Bowdish's  Ex'r,  61  Vt.  23; 
Humphrey  v.  Campbell,  59  S.  C.  39; 
Dunglison's  Estate,  201  Pa.  St.  592. 
Such  a  general  power  of  appoint- 
ment is  not  property,  and  in  the 
absence  of  statute  does  not  pass  to 
the  assignee  in  bankruptcy  of  its 
possessor,  nor  can  he  be  compelled 
to  execute  it  in  favor  of  his  credi- 
tors. Jones  V.  Clifton,  101  U.  S.  225; 
Brandies  v.  Cochrane,  112  U.  S.  344. 

438 


CHAP.  VIII.]    HOW  THE  COURT  WILL  EXECUTE  THEM.  [§  255. 

§  255.  Generally,  if  the  power  is  left  unexecuted  by  the 
donee,  the  court  will  execute  it  as  a  trust,  by  dividing  the  fund 
equally  among  the  objects  or  persons  in  favor  of  whom  it  was 
given,  or  from  whom  the  selection  might  have  been  made,  on 
the  ground  that  equality  is  equity.^  But  if  the  donor  of  the 
power  lays  down  any  rule  by  which  the  dmiee  or  trustee  is  to 
be  governed  in  his  election  and  distribution  of  the  fund,  it  is 
said  the  court  will  place  itself  in  the  position  of  the  trustee. 
If  the  discretion  of  the  trustee  is  to  be  founded  upon,  or  meas- 
ured by,  a  state  of  facts  which  the  court  can  inquire  into  and 
apply  as  efTectually  as  a  private  person  could,  it  "can  look 
with  the  eyes  of  the  trustee,"  and  can  substitute  its  own  judg- 
ment for  that  of  the  individual.  Lord  Ilardwicke  said  in  a 
case  before  him,  "Here  a  rule  is  laid  down;  the  trustees  are  to 
judge  of  the  occasions  and  necessities  of  the  family;  the  court 
can  judge  of  such  necessity;  that  is  a  judgment  to  be  made  from 
existing  facts,  so  that  the  court  can  make  the  judgment  as 
well  as  the  trustee,  and,  when  informed  by  evidence  of  the 
necessity,  can  judge  what  is  equitable  and  just  on  this  neces- 
sity;" and  his  Lordship  referred  the  case  to  a  master  to  report 
the  facts,  and  decreed  a  distribution  according  to  the  necessities 
found .^  This  doctrine  has  been  acted  upon  in  similar  cases.' 
In  others,  the  courts  have  said  that  it  was  "impossible  to  dis- 
tinguish between  degrees  of  poverty,"  and  that  they  would  not 
attempt  to  apply  the  discretion  given  to  the  donee  of  the  pow^er, 

[  As  upon  the  death  of  the  person  for  whose  sole  benefit  the  power  was 
given.  Tucker  v.  Baldwin,  73  N.  J.  Eq.  224.  See  also  Peirsol  v.  Roop, 
56  N.  J.  Eq.  739;  Gulick  v.  Griswold,  160  N.  Y.  399.] 

1  Doyley  v.  Attorney  General,  2  Eq.  Gas.  Ab.  195;  Longmore  v.  Broom, 
7  Ves.  124;  Salusbury  v.  Denton,  3  K.  &  J.  403;  Izod  v.  Izod,  32  Beav. 
249;  Gray  v.  Gray,  13  Ir.  Ch.  404;  Fordyce  v.  Brydges,  2  Phill.  497;  Penny 
V.  Turner,  id.  493;  Whithurst  v.  Harker,  2  Ir.  Ch.  492;  Kennedy  v.  Kingston, 
2  J.  &  W.  431;  Frazier  v.  Frazier,  2  Leigh,  642;  Cruse  v.  McKee,  2  Head,  1; 
Davy  V.  Hooper,  2  Vem.  665.      [  Loosing  v.  Loosing,  85  Neb.  66.] 

*  Gower  v.  Mainwaring,  2  Ves.  87.  Mr.  Belt's  edition  has  a  misprint, 
the  court  cannot  judge. 

»  Liley  v.  Hey,  1  Hare,  581;  Hewett  v.  Hewett,  2  Eden,  332;  Maberly 
V.  Thurton,  14  Ves.  499;  Bull  v.  Bull,  8  Conn.  48. 

439 


§  256.]  TRUSTS    IMPLIED    FROM    POWERS.         [CHAP.  VIII. 

but  would  divide  the  fund  equally.^  This  conflict  of  authority 
leaves  the  question  open  for  further  discussion.  It  would  seem 
that  there  is  no  impossibility  in  the  nature  of  things  "in  dis- 
tinguishing between  degrees  of  poverty,"  or  in  deciding  what 
class  of  persons  or  relations  come  within  the  description,  and 
should  take  under  the  gift  of  the  donor.  Lord  Hardwicke's 
observations  are  just,  and  can  be  acted  upon  by  courts.  It  is 
not  so  much  a  question  whether  courts  of  equity  can  exercise 
the  discretion  given  to  the  trustee,  as  whether  it  is  consistent 
with  the  dignity  of  courts  to  inquire  into  the  relative  necessities 
of  a  testator's  relations,  or  whether  they  have  the  time  to  enter 
into  such  inquiries.  So  far  as  the  dignity  of  courts  is  concerned, 
they  may  well  remember  that  they  are  created  to  administer 
justice  and  equity  to  the  people,  and  that  no  inquiries  or  decrees 
that  can  be  successfully  made  are  inconsistent  with  their  position 
or  duties.^ 

§  256.  If  the  donee  of  the  power  or  trustee  is  to  select  from 
the  donor's  relations  those  to  whom  he  is  to  give  the  property, 
in  the  execution  of  the  power  he  may  select  from  the  whole 
circle  of  relations  whether  near  or  distant ;  ^  and  he  may  exclude 
some;^  but  if  the  power  is  to  distribute  to  the  donor's  relations, 
then  the  donee  must  confine  himself  to  the  relations  that  are 
so  near  that  they  would  take  under  the  statute  of  distributions.^ 

1  McNeilledge  v.  Galbrath,  8  Serg.  &  R.  43;  Harrison  v.  Harrison,  2  Grat. 
1;  Withers  v.  Yeadon,  1  Rich.  Ch.  324. 

2  Upon  the  general  subject  of  bequests  to  poor  or  necessitous  relations, 
see  Att.  Gen.  v.  Buckland,  1  Ves.  231;  Amb.  71;  Anon.  1  P.  Wms.  327; 
Widmore  v.  Woodroffe,  Amb.  636;  Brunsden  v.  Woolredge,  id.  507; 
Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill;  Green  v.  Howard,  1  Bro.  Ch.  33. 

^  Grant  v.  Lynham,  4  Russ.  292;  Brown  v.  Higgs,  5  Ves.  .501;  Cruwyg 
V.  Colman,  9  Ves.  324;  Swift  v.  Gregson,  1  T.  R.  435,  note  f;  Salusbury  v. 
Denton,  3  K.  &  J.  536;  Supple  v.  Lowson,  Amb.  729;  Harding  v.  Glyn,  1 
Atk.  469;  Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill;  HuUng  i;.  Farrer,  9  R.  I. 
410;  Brunsden  v.  Woolredge,  Amb.  507,  seems  inconsistent  with  the  other 
authorities. 

*  Ingraham  v.  Meade,  3  Wall.  Jr.  32. 

5  Clapton  V.  Bulmer,  10  Sim.  426;  5  My.  &  Cr.  108;  Att.  Gen.  v.  Price, 
17  Ves.  373,  note  a;  Isaac  v.  Defriez,  Amb.  595;  Carr  v.  Bedford,  2  Ch.  R. 

440 


CHAP.  VIII.]    now  THE  COURT  WILL  EXECUTE    THEM.  [§  256. 

Courts  have  adopted  the  rule  of  the  statute  of  distributions  as 
a  convenient  rule  in  such  cases,  to  prevent  such  gifts  from 
being  void  for  uncertainty.  If  the  power  devolves  upon  the 
court  as  a  trust,  whether  it  is  one  of  selection  or  distribution, 
the  court  will  act  upon  the  rule  of  the  statute  of  distributions,^ 
unless  the  donor  has  himself  established  some  rule  of  selection 
or  distribution  which  the  court  can  act  upon.^  And  the  same 
rule  applies  if  the  donor  uses  the  word  "family."^  A  gift  to 
nearest  relations  or  next  of  kin  must  be  administered  in  the 
same  way."*  But  it  is  said  that  a  power  of  selection  will  be  im- 
plied in  the  donee  in  the  case  of  relations,  where  it  would  not 
have  been  implied  in  the  case  of  children.^  (a)  A  power  to 
an  unmarried  woman  to  appoint  to  her  family  or  next  of  kin 
may  extend  to  any  relative/  and  such  power  may  be  executed 
after  coverture.^ 

146;  Pope  v.  Whitcombe,  3  Mer.  437;  In  re  Jeaffreson's  Trusts,  L.  R.  2  Eq. 
276;  Forbes  v.  Ball,  3  Mer.  437.  This  case  seems  inconsistent,  but  the 
question  was  whether  it  was  a  power  or  a  trust,  and  not  whether  the  author- 
ity was  exceeded. 

'  Bennett  v.  Honywood,  Amb.  708;  Hutchinson  v.  Hutchinson,  13  Ir. 
Eq.  332;  Gough  v.  Bult,  16  Sim.  45;  Cowper  v.  Mantell,  22  Beav.  231. 

*  Ibid.;  or  unless  the  gift  is  in  some  sense  a  charity.  White  v.  White, 
7  Ves.  423;  Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill;  Alt.  Gen.  v.  Price,  17  Ves. 
371;  Isaac  v.  Defriez,  id.  373,  note  a. 

'  Cruwys  t'.  Colman,  9  Ves.  319;  Grant  v.  Lynham,  4  Russ.  297. 

*  Edge  V.  Salisbury,  Amb.  70;  Goodinge  v.  Goodinge,  1  Ves.  231. 

*  Spring  V.  Biles,  1  T.  R.  435,  note  f;  Mahon  v.  Savage,  1  Sch.  &  Lef. 
Ill;  Salusburj-  v.  Denton,  3  K.  &  J.  536;  Pope  v.  TMiitcombe,  3  Mer.  689. 

6  Snow  V.  Teed,  L.  R.  9  Eq.  622. 
^  Wood  V.  Wood,  L.  R.  10  Eq.  220. 

(a)  In  Wilson  v.  Duguid,  24  Ch.  the  Court  has  found  itself  under  the 

Div.  244,  251,  Chitty,  J.,  says  in  ren-  necessity  of  confining  the  class  of  re- 

dering his  opinion:  " It  is  now  cstab-  lations  to  a  particular  set  of  rela- 

lished  that  where  there  is  power  to  tions,  and  has  adopted  the  rule  that 

appoint  among  relations  so   as  to  the  relations  who  take  in  default  of 

give   the  donee   of   the   power  the  the  exercise  of  the  power  in  that  case 

right  of  selection  —  the  donee  of  the  are  those  who  are  the  next  of  kin 

power  can  appoint  to  any  relations,  according  to  the  statute;  thej'  take 

but  in  modelling  the  trusts  to  be  ap-  as  tenants  in  common,  but  not  in 

plied  in  default  or  arising  from  the  the  shares  defined  by  the  statute." 
power  being  coupled  with  a  duty, 

441 


§  257.]  TRUSTS    IMPLIED    FROM    POWERS.     [CHAP.  VIII. 

§  257.  Intimately  connected  with  this  subject  is  the  inquiry 
whether  courts  will  execute  the  power  of  distribution  among 
the  persons  intended,  by  distributing  yer  capita  or  per  stirpes. 
Upon  this  matter  it  is  to  be  observed  that  courts  have  adopted 
the  statute  of  distributions  as  a  convenient  rule  to  point  out 
the  relations  intended  by  a  donor,  when  he  uses  that  word  in  a 
gift.  The  only  reason  for  adopting  the  rule  was  to  prevent  the 
gift  from  failing  for  uncertainty.  The  rule  is  used  to  point  out 
the  persons  intended  to  take,  but  the  terms  of  the  gift  are  used 
to  point  out  the  proportions.  If,  therefore,  there  is  no  rule  in 
the  gift  which  can  apply  to  determine  the  proportions,  the 
court  will  make  the  distribution  per  capita,  and  everybody 
within  the  rule  will  take  equally  as  tenants  in  common.^  But 
if  the  gift  is  to  the  next  of  kin  of  the  donor,  it  will  be  confined  to 
the  nearest  relations;  and  those  who  would  take  by  representa- 
tion under  the  statute  of  distributions  will  be  excluded  if  there 
are  relations  a  degree  nearer.^  If  the  gift  is  to  "my  surviving 
nephews  and  nieces"  after  paying  certain  legacies  and  the 
termination  of  certain  life  estates,  the  representatives  of  a 
nephew  who  survived  the  testator,  but  died  before  the  time 
for  distribution,  have  no  share.^  If  the  fund  is  left  for  the 
"maintenance  and  education"  of  two  children  named,  each 
will  share  equally  without  regard  to  their  difTering  needs.^  If  the 
subject-matter  of  the  gift  is  incapable  of  division,  and  is  to  be 
bestowed  upon  some  one  of  a  class  to  be  selected  by  the  donee, 
and  no  selection  is  made,  the  court  will  notwithstanding  execute 
the  power  as  a  trust,  if  by  any  possibility  it  can  be  done.^ 

1  Walker  v.  Maunde,  19  Ves.  427;  Thomas  v.  Hole,  Cas.  t.  Talb.  251; 
Phillips  ;;.  Garth,  3  Bro.  Ch.  64;  Stamp  v.  Cooke,  1  Cox,  326;  Hinckley 
V.  Maclaerns,  1  Myl.  &  K.  27;  Withy  v.  Mangles,  4  Beav.  358;  10  CI.  & 
Fin.  215;  Green  j;.  Howard,  1  Bro.  Ch.  33;  Pope  v.  Whitcombe,  3  Mer.  689; 
Rayner  v.  Mowbray,  3  Bro.  Ch.  234;  De  Laxirencel  v.  De  Boom,  67  CaL 
362.    [  Wilson  v.  Duguid,  24  Ch.  Div.  244,  251.] 

»  Elmsley  v.  Young,  2  Myl.  &  K.  780;  Withy  v.  Mangles,  4  Beav.  358; 
10  CI.  &  Fin.  215.    [  Harris  v.  Newton,  46  L.  J.  Ch.  268.] 

»  Denny  v.  Kettel,  135  Mass.  138. 

*  Jones  V.  Foote,  137  Mass.  543. 

»  Moseley  v.  Moseley,  R.  t.  Finch.  53;  Clarke  v.  Turner,  Freem.  199; 

442 


CHAP.  VIII.]    HOW  THE  COURT  WILL  EXECUTE  THEM.  [§  258. 

§  258.  Another  difficult  question  which  courts  must  decide 
when  they  are  called  upon  to  execute  these  powers  or  trusts, 
is,  whether  the  fund  shall  be  distributed  to  the  parties  in  inter- 
est living  at  the  donor's  death,  or  to  those  living  at  the  donee's 
death.  Upon  this  matter  it  has  been  determined  that  when  it 
appears  that  the  donee  is  to  have  his  whole  life  to  make  the 
selection  or  distribution,  or  if  the  donee  is  to  have  the  use  of  the 
fund  for  his  life,  then  the  court  will  distribute  it  to  the  parties 
entitled  Hving  at  the  death  of  the  donee.'  But  if  the  donee  is 
to  make  the  distribution  immediately,  or  as  soon  as  may  be, 
the  court,  on  his  death,  without  executing  the  power,  will  dis- 
tribute the  fund  among  those  entitled  at  the  death  of  the  donor  ;^ 
and  the  same  rule  will  be  followed  if  the  donee  die  before  the 
donor.^  These  rules,  however,  are  applicable  only  when  the 
final  beneficiaries  take  through  the  medium  of  the  power;  for  if 
they  take  directly  by  the  form  of  the  gift  subject  to  be  defeated 
by  the  execution  of  the  power,  they  have  a  vested  interest  at 
the  death  of  the  donor,  and  of  course  those  living  at  that  time 
will  take,  if  the  power  is  not  executed  to  defeat  them."*  Where 
the  donee  may  execute  the  power  by  deed  or  will  at  any  time 
during  his  life,  and  he  dies  leaving  the  power  unexecuted,  there 
is  a  conflict  of  the  authorities  upon  the  question  to  whom  should 
the  court  give  the  funds :  IVIr.  Lewin  says  that  there  is  an  equal 
conflict  of  principle.^ 

Richardson   v.   Chapman,  7    Bro.    P.   C.  318  ;   Brown   v.    Higgs,  5   Ves. 
604. 

*  Cruwys  v.  Colman,  9  Ves.  319;  Brown  v.  Pocock,  6  Sim.  257;  Bonser 
V.  Kinnear,  2  Gif.  195;  Birch  t^.  Wade,  3  Ves.  &  B.  198;  Walsh  v.  Wallinger, 
2R.&M.78;Burrough  r.  Philcox,  5  My.  &Cr.  72;  Woodcock  v.  Rcnneck,  4 
Beav.  190;  1  Phill.  72;  Finch  v.  HoUingsworth,  21  Beav.  112;  Doyley  v. 
Att.  Gen.,  2  Eq.  Cas.  Ab.  194,  pi.  15;  Witts  v.  Boddington,  3  Bro.  Ch.  95; 
Winn  V.  Fenwick,  11  Beav.  438;  Tiffin  t-.  Longman,  15  Beav.  275;  Grieveson 
*.  Kirsopp,  2  Keen,  653;  Freeland  v.  Pearson,  L.  R.  3  Eq.  658. 

*  Brown  v.  Higgs,  4  Ves.  708;  Longmore  f.  Broom,  7  VeS.  124;  Cole  v. 
Wade,  16  Ves.  27. 

»  Penny  v.  Turner,  2  Phill.  493;  Hutchinson  v.  Hutchinson,  13  Ir.  Eq. 
332. 

*  Lambert  v.  Thwaites.  L.  R.  2  Eq.  151. 

»  Doyley  v.  Att.  Gen.,  2  Eq.  Cas.  Ab.  195;  Harding  v.  Glj-n,  1  Atk.  469; 

443 


§  258.]  TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 

Pope  V.  Whitcombe,  3  Mer.  689,  are  authorities  that  those  living  at  the 
death  of  the  donee  should  take.  On  the  other  hand,  the  cases  of  Hands 
V.  Hands,  1  T.  R.  437,  note;  Grieveson  v.  Kirsopp,  2  Keen,  653,  are  author- 
ities that  those  living  at  the  death  of  the  donor  should  take.  Mr.  Lewin 
says,  p.  600  (5th  ed.  Lond.) :  "Upon  principle,  too,  as  well  as  upon  authority, 
this  question  is  attended  with  difficulty.  On  the  one  hand,  the  power  may 
be  properly  exercised  by  the  donee  at  any  time  before  his  death,  and  there 
is  no  obligation  to  exercise  it  earlier,  and  if  any  members  of  the  class  die 
before  the  power  is  exercised,  they,  according  to  the  ordinary  rule,  cease  to 
be  objects  of  it.  The  donee  of  the  power  has  an  undoubted  right  to  post- 
pone the  execution  of  it  until  the  last  moment  of  his  life,  and  the  only  default 
which  the  court  has  to  supply,  is  the  non-exercise  just  before  his  death;  and 
that  default  must,  therefore,  be  supplied  in  favor  of  those  who  were  objects 
at  the  date  of  the  death  of  the  donee.  On  the  other  hand,  the  donee  of  the 
power  may  exercise  it  in  favor  of  the  class  existing  at  the  time  of  exercise, 
to  the  exclusion  of  those  who  have  died  before,  and  also,  where  the  power 
is  one  of  selection,  to  the  exclusion  of  those  who  may  came  into  esse  subse- 
quently, but  the  court  cannot  act  arbitrarily,  and  cannot  show  any  favor, 
but  must  observe  equality  towards  all.  Who,  then,  are  the  objects  of  the 
power?  As  it  was  not  the  duty  of  the  donee  of  the  power  to  exercise  it  at 
one  time  more  than  another,  the  only  objects  of  the  power  must  be  all  those 
who  might  by  possibiUty  have  taken  a  benefit  under  it;  that  is,  those  living 
at  the  death  of  the  testator,  and  those  who  come  into  being  during  the  con- 
tinuance of  the  life-estate;  otherwise,  should  all  the  class  predecease  the 
tenant  for  life  (an  event  not  improbable  where  children  or  some  limited 
class  of  relations  are  the  objects),  there  would  be  a  power  imperative  which 
is  construed  a  trust,  and  no  cestui  que  trust,  —  a  result  which,  it  is  conceived, 
the  court  would  be  somewhat  unwilling  to  adopt. 


444 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TKU8T.  [§  259. 


CHAPTER  IX. 

APPOINTMENT,  ACCEPTANCE,  DISCL.\IMER,  REMOVAL,  RESIGNA- 
TION, SUBSTITUTION,  AND  NUMBER  OF  TRUSTEES,  AND  APPOINT- 
MENT  UNDER   A    POWER. 

§  259.   Acceptance  of  the  trust  —  how  and  when  it  should  be  accepted. 

§  260.  What  is  an  acceptance,  and  its  effect. 

§  261.  How  an  acceptance  may  be  shown. 

§  261  a.     Trustee's  bond. 
§§  262,  263.    Where  an  executor  is  also  named  as  trustee. 

§  264.    Of  the  executor  of  an  executor,  or  the  executor  of  a  trustee. 

§  265.    Trustee  de  son  tort.    ' 

§  266.    No  such  thing  as  a  passive  trustee. 

§  267.    Disclaimer  by  trustee. 

§  268.  Cannot  disclaim  after  acceptance. 

§  269.  WTiether  an  heir  can  disclaim  after  the  death  of  the  trustee. 

§§  270,  271.    Parol  disclaimer  suflBcient,  but  a  writing  more  certain. 

§  272.  Where  a  legacy  or  other  benefit  is  given  to  the  trvistee  or 

executor. 

§  273.  Effect  of  a  disclaimer. 

Removal  or  resignation. 

§  274.  How  a  trustee  may  be  removed  or  resign. 

§  275.  For  what  causes  may  be  removed. 

§  276.  For  what  causes  may  be  allowed  to  resign. 

§  276  a.         A  trust  shall  not  fail  for  lack  of  a  trustee.    See  §  731. 
§§  277,  278.   How  the  court  proceeds  in  substituting  trustees. 

§  279.  Bankruptcy  of  trustees. 

§  280.  The  resignation  of  trustees. 

§  281.  Where  the  same  person  is  executor  and  trustee. 

§  282.  The  proceedings  to  remove  and  substitute  trustees. 

§  283.  Where  all  parties  consent. 

§  284.  Of  the  vesting  of  the  property  in  the  new  trustees. 

§  285.  Duty  of  trustee  where  all  consent  to  his  discharge. 

§  286.    Of  the  number  of  trustees. 

Appointment  of  trustees  under  a  power. 

§  287.  Trustees  cannot  appoint  their  successors  or  new  trustees  unless 

power  is  given  in  the  instrument  of  trust. 

§  288.  Caution  necessary  in  new  appointments. 

445 


§  259.]  ACCEPTANCE   OF   THE   TRUST.  [CHAP.  IX. 

§  289.  Powers  of  appointment  frequently  matters  of  personal  confi- 

dence. 

§  290.  Occasions  or  events  upon  which  new  appointments  may  be 

made. 

§  291.  An  appointment  may  be  made  to  fill  a  vacancy  occurring  before 

the  death  of  the  testator. 

§  292.  Unfitness  and  incapacity. 

§  293.  Power  cannot  be  exercised  if  the  trust  is  already  in  suit  in  court. 

§  294.  By  whom  the  power  may  be  exercised. 

§  295.  The  power  must  be  strictly  followed. 

§  296.  Who  may  be  appointed  to  exercise  the  power. 

§  297.  Who  may  be  appointed  under  a  power. 

§  259.  When  a  trust  is  created  by  implication,  result,  or 
construction  of  law  from  acts  of  parties,  they  will  be  held  by 
the  law  to  the  performance  of  the  trust  whether  they  are 
willing  or  unwilling  to  accept  the  situation;  that  is,  when  a 
trust  is  raised  by  law  and  thrust  upon  the  conscience  of  a  party, 
as  the  result  or  construction  to  be  put  upon  his  acts,  in  order 
to  do  complete  justice,  the  acceptance  or  refusal  of  the  party 
to  be  charged  with  the  trust  cannot  alter  his  legal  or  equitable 
liability  to  act  as  a  trustee,  and  to  do  all  that  is  required  of 
him  to  execute  the  trust.  Subject  to  this  qualification,  no  one 
is  compellable  to  undertake  a  trust.^  If  a  conveyance  is  made 
by  a  private  individual  or  corporation  to  public  officers  and 
their  successors  in  oflBce,  the  successors  are  not  bound,  unless 
they  accept  the  trust.^  In  voluntary  or  express  trusts,  no  title 
vests  in  the  proposed  trustee,  by  whatever  instrument  it  is 
attempted  to  be  transferred,  unless  he  expressly  or  by  implica- 
tion accepts  the  office,  or  in  some  way  assumes  its  duties  and 
liabilities.^    And  though  a  person  may  have  promised  or  agreed 

1  Lowry  v.  Fulton,  9  Sim.  123;  Robinson  v.  Pitt,  3  P.  Wms.  251;  Moyle 
V.  Moyle,  2  Russ.  &  M.  715.  And  he  may  renounce  the  trust,  though  such 
renunciation  may  deprive  a  beneficiary  of  all  means  of  obtaining  a  benefit 
intended  for  him  by  a  testator.  Beekman  v.  Bonsor,  23  N.  Y.  298;  Kennedy 
V.  Winn,  80  Ala.  166. 

*  Delaplane  v.  Lewis,  19  Wis.  476. 

'  Maccubbin  v.  Cromwell,  7  Gill  &  J.  157;  Bethune  i;.  Dougherty,  21  Ga. 
257;  King  v.  Donnelly,  5  Paige,  46;  Trask  v.  Donaghue,  1  Aik.  370;  Burritt 
V.  Silliman,  13  N.  Y.  93;  De  Peyster  v.  Clendining,  8  Paige,  295;  Bulkley 
V.  De  Peyster,  26  Wend.  21;  Judson  v.  Gibbons,  5  Wend.  224;  Cooper  v. 

446 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TRUST.  [§  259. 

beforehand  to  accept  a  trust,  and  his  name  is  introduced  into 
the  will,  conveyance,  or  settlement,  yet  he  may  decline  to  act, 
and  it  is  proper  for  him  to  do  so  if  he  finds  that  his  duties  are 
different  from  what  he  conceived  them  to  be  when  he  entered 
into  the  agreement;  or  if  for  any  reason  he  cannot  attend  to  the 
proper  discharge  of  the  office.^  Such  refusal  does  not  invalidate 
the  deed  or  will:  it  only  relieves  the  trustees,  and  enables  the 
court  to  appoint  others.^  (a)  The  refusal  to  act  should  be  affirm- 
atively shown,  either  by  an  express  disclaimer,  or  by  such  a  tacit 
refusal  to  act  as  amounts  to  an  express  rejection ;  ^  for  every 
gift  by  will  or  deed  is  supposed,  prima  facie,  to  be  beneficial 
to  the  donee,  and  therefor  the  law  will  presume  that  every  gift, 
whether  in  trust  or  not,  is  accepted  until  the  contrary  is  proved."* 
Especially  will  this  presumption  prevail  after  a  long  lapse  of 

McClun,  16  111.  435;  Matter  of  Robinson,  37  N.  Y.  261 ;  Armstrong  v.  Mor- 
rill, 14  Wall.  138. 

1  Doyle  V.  Blake,  2  Sch.  &  Lef.  239;  Evans  v.  John,  4  Beav.  35;  Smith 
V.  Knowles,  2  Grant  Cas.  413;  Crook  v.  Ingoldsby,  2  Ir.  Eq.  375. 

*  Brownell  v.  Downs,  11  How.  62;  Nicoll  v.  Miller,  37  111.  387;  Nicoll  v. 
Ogden,  29  111.  323;  Elstner  v.  Fife,  32  Ohio  St.  358;  Thatcher  v.  St.  Andrews 
Church,  37  Mich.  264;  Johnson  v.  Roland,  58  Tenn.  203.  [  Smith  v.  Davis, 
90  Cal.  25;  Prince  v.  Barrow,  120  Ga.  810;  Adams  v.  Adams,  21  Wall.  185; 
Brandon  v.  Carter,  119  Mo.  572;  Dailey  v.  New  Haven,  60  Conn.  314.]  De- 
clining to  act  as  executor  is  not  a  renunciation  of  the  trust  over  a  fund  be- 
queathed in  the  will.  Garner  v.  Dowling,  11  Heisk.  (Tenn.)  48;  Williams 
I.  Gushing,  34  Maine,  370;  Taintor  v.  Clark,  13  Met.  224. 

'  Read  v.  Robinson,  6  Watts  &  S.  331. 

<  Ibid.;  Townson  v.  Tickell,  3  B.  &  Aid.  36;  Thompson  v.  Leach,  Ventr. 
198;  Wilt  V.  Franklin,  1  Binn.  502;  Wise  v.  Wise,  2  Jon.  &  La.  412;  Eyrick 
V.  Hetrick,  13  Penn.  St.  494;  4  Kent,  500;  4  Cru.  Dig.  404-406;  Goss  v. 
Singleton,  2  Head,  67;  Penny  v.  Davis,  3  B.  Mon.  313;  Furman  v.  Fisher,  4 
Cold.  626. 

(a)  The  same  is  true  when  the  ing  the  trust.     Smith  v.  Davis,  90 

named  trustee  is  legally  incapable  of  Cal.  25;  Hickory  v.  Railroad,  137  N. 

taking  title.    In  such  cases  the  trust  C.   189;  Willis  v.  Alvey,  69  S.  W. 

instrument  is  treated  as  creating  a  1035   (Tex.   Civ.   App.    1902).     See 

beneficial  interest  in  the  cestui,  sub-  Ewing  t;.    Buckner,    76    Iowa,   467. 

ject  to  his  right  to  refuse  to  accept  Disclaimer  of  the  oflfice  of  trustee 

it,  and  a  court  of  equity  will  on  ap-  is  a  disclaimer  of  the  legal  title  of 

plication  appoint  a  trustee  capable  the  estate  conveyed  or  devised.    In 

of  taking  the  legal  title  and  execut-  re  Birchall,  40  Ch.  Div.  436. 

447 


§  260.]  ACCEPTANCE    OF   THE    TRUST.  [CHAP.  IX. 

time,  as  twenty  years/  or  thirty-four  years,^  if  the  trustee  has 
notice,  and  has  not  disclaimed,  though  he  may  have  done 
nothing  in  the  execution  of  the  trust.  And  even  where  a  deed 
was  only  four  years  old,  and  the  trustees  knew  of  their  appoint- 
ment, and  did  not  object,  Lord  St.  Leonards  held  that  they 
could  not  be  allowed  to  say  that  they  did  not  assent  to  the 
conveyance.^ 

§  260.  If  the  trust  is  created  by  deed,  the  most  obvious, 
natural,  and  effectual  mode  of  signifying  an  acceptance  is  by 
signing  the  deed;^  but  such  execution  of  the  deed  by  the  trustee 
is  not  necessary.^  Where  trusts  are  by  will  vested  in  the  exec- 
utors as  such,  accepting  and  qualifying  as  executor  accepts 
the  trusts.®  (a)  Acceptance  may  be  presumed  by  acts  of  the 
trustee  at  or  subsequent  to  the  grant.^  If  the  trustee  acts 
under  the  deed  in  the  performance  of  the  trust,  he  will  be  held 
to  have  accepted,  though  he  has  not  executed,  the  deed,  and  he 

1  In  re  Uniacke,  1  Jon.  &  La.  1;  Eyrick  v.  Hetrick,  13  Penn.  St.  493. 

*  In  re  Needham,  1  Jon.  &  La.  34. 

'  Wise  V.  Wise,  2  Jon.  &  La.  403^12;  Penny  v.  Davis,  3  B.  Mon.  314; 
Lewis  V.  Baird,  3  McLean,  65;  Read  v.  Robinson,  6  Watts  &  S.  338. 

*  Patterson  v.  Johnson,  113  III.  559;  a  good  case  on  acceptance. 

*  Flint  V.  Clinton  Co.,  12  N.  H.  432;  Cook  v.  Fryer,  1  Hare,  498;  Mont- 
fort  V.  Cadogan,  17  Ves.  488;  19  Ves.  638;  Small  v.  Ayleswood,  9  B.  &  Cr. 
300;  Leffler  v.  Armstrong,  4  Iowa,  482;  Buckridge  v.  Glasse,  1  Cr.  &  Ph. 
131;  Bixler  v.  Taylor,  3  B.  Mon.  362;  Field  v.  Arrowsmith,  3  Humph.  442; 
Smith  V.  Ejiowles,  2  Grant,  Ca.  413  ;  Roberta  v.  Moseley,  51  Mo. 
284. 

«  Earle  v.  Earle,  93  N.  Y.  104. 

^  Harvey  v.  Gardner,  4l'Ohio  St.  642.  [  Daly  v.  Bernstein,  6  N.  Mex.  380, 
395;  Brandon  v.  Carter,  119  Mo.  572.] 

(a)  As  to  conduct  showing  ac-  assumption  by  him  of  the  duties  of 
ceptance  of  a  trust  by  an  adminis-  trustee  serve  to  make  him  no  more 
trator  de  bonis  non  vnih  the  will  an-  than  trustee  de  son  tort.  Penn  v. 
nexed,  see  Freeman  v.  Brown,  115  Fogler,  182  111.  76;  Casselman  v. 
Ga.  23.  But  the  better  view  seems  McCooley,  73  N.  J.  Eq.  253;  Dun- 
to  be  that  an  appointment  of  one  as  ning  v.  Ocean  Nat.  Bank,  61  N.  Y. 
administrator  de  bonis  non  is  not  an  497.  But  see  Sheets's  Estate,  215 
offer  of  the  trusteeship,   and   any  Pa.  St.  164. 

448 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TRUST.  [§  260. 

may  be  liable  for  a  breach  of  the  trust;'  (a)  but  if  the  deed 
contains  special  covenants,  the  trustee  cannot  be  sued  upon 
them,  if  he  has  not  executed  it,  though  he  may  have  accepted 
the  deed.^  Nor  will  the  execution  of  the  deed  amount  to  a 
covenant  to  execute  the  trust,  if  it  does  not  contain  words  that 
can  be  construed  into  such  a  covenant  at  law.^  But  the  word 
"covenant"  or  "agree"  is  not  necessary  for  that  purpose;  the 
word  "declare"  will  suffice.'*  If  there  is  a  breach  of  the  trust, 
but  no  execution  of  the  deed  other  than  by  an  acceptance  of  it, 
a  simple  contract  debt  only  is  created  against  the  trustee  or  his 
estate,^  but  a  breach  of  covenants  under  the  hand  and  seal  of 
the  trustee  creates  a  specialty  debt,  which  in  some  jurisdictions 
takes  precedence  of  simple  contract  debts.^  This  distinction 
is  of  no  effect  in  the  United  States,  as,  in  every  State,  probably 
the  real  estate  of  a  deceased  person  is  equally  liable  for  his 
debts,  however  contracted  or  evidenced.  If  the  trustee  executes 
the  deed,  he  should  see  to  it  that  the  recitals  are  all  correct, 

»  Redenour  v.  WTierritt,  30  Ind.  485. 

*  Richardson  v.  Jenkins,  1  Drew.  477;  Vincent  v.  Godson,  1  Sm.  &  Gif. 
384. 

'  Wynch  i-.  Grant,  2  Drew.  312;  Courtney  t-.  Taylor,  6  M.  &  Gr.  851; 
Newport  v.  Bryan,  5  Ir.  Ch.  119;  Adey  v.  Arnold,  2  De  G.,  M.  &  G.  433; 
Marryatt  v.  Marryatt,  6  Jur.  (n.  s.)  572;  Holland  v.  Holland,  L.  R.  4  Ch. 
449. 

*  Richardson  v.  Jenkins,  1  Drew.  477;  Saltoun  v.  Hanston,  1  Bing.  N.  C. 
433;  Cummins  v.  Cummins,  3  Jon.  &  La.  64;  8  Ir.  Ch.  723;  Jenkins  v.  Robert- 
son, Law  R.  1  Eq.  123. 

«  Jenkins  v.  Robertson,  1  Eq.  R.  123;  Lockhart  v.  Reilly,  1  De  G.  & 
J.  464;  Vernon  v.  Vawdry,  2  Atk.  119;  Bam.  280;  Cox  v.  Bateman,  2  Ves. 
19;  Keaman  v.  Fitzsimon,  3  Ridg.  P.  C.  18.  If  the  trustee  execute  the 
deed,  and  it  is  a  simple  acceptance  of  the  trust  on  his  part,  the  breach  of 
the  trust  is  a  simple  contract  debt,  for  there  is  no  breach  of  any  express 
covenant.      Holland  v.  Holland,  L.  R.  4  Ch.  449. 

«  Gifford  V.  Manley,  For.  109;  Mavor  v.  Davenport,  2  Sim.  227;  Benson 
V.  Benson,  1  P.  Wms.  131;  Deg  v.  Deg,  2  P.  Wms.  414;  Turner  v.  Wardle, 
7  Sim.  80;  Bailey  v.  Ekins,  2  Dick.  632;  Cummins  v.  Cummins,  3  Jon.  & 
La.  64;  Primrose  v.  Bromley,  1  Atk.  89;  Wood  v.  Hardisty,  2  Coll.  542, 
commented  upon  in  L.  R.  1  Eq.  125. 

(a)  Or  his  conduct  may  estop  McBride  r.  Mclntyre,  91  Mich.  406; 
him  from  denying  an  acceptance.     Lewin  (Uth  ed.)  219. 

VOL.  I.  — 29  449 


§  261. J  ACCEPTANCE    OF    THE    TRUST.  [CHAP.   IX. 

otherwise  he  may  be  held  liable  to  make  them  good.^  Accept- 
ance of  the  trust  estops  the  trustee  from  denying  the  title  of 
the  person  for  whom  he  holds.^  (a) 

§  261.  Parol  evidence  of  the  conversations,  acts,  and  ad- 
missions of  a  party  are  admissible  to  prove  his  acceptance  of 
a  trust.^  Thus,  if  a  person,  with  notice  of  his  appointment 
to  a  trust,  receives  the  income  of  the  trust  estate;  *  or  executes 
a  power  of  attorney;^  or  signs  a  joint  draft,  order,  or  receipt, 
to  enable  some  other  person  to  act  in  administering  the  estate 
or  the  trust;  ®  or  signs  a  receipt  as  trustee;  "^  or  gives  notice  to  a 
tenant  of  the  estate  to  pay  rent  to  him ;  *  or  brings  an  action  on 
the  footing  of  the  trust;  ^  or  interferes  generally  by  ordering  the 
trust  property  to  be  sold,  or  by  being  present  at  the  sale,  or  by 
giving  any  directions  implying  ownership,  or  by  frequently 
making  inquiries  of  the  acting  trustee  as  to  the  affairs  of  the 

»  Gore  V.  Bowser,  3  Sm.  &  Gif.  6;  Chaigneau  v.  Bryan,  1  Ir.  Ch.  172; 
8  Ir.  Ch.  251;  Story  v.  Gape,  2  Jur.  (n.  s.)  706;  Bliss  v.  Bridgewater  (cited 
Lewin  on  Trusts,  166,  6th  ed.).  But  in  Fenwick  v.  Greenwell,  10  Beav. 
418,  the  Master  of  the  Rolls  refused  to  allow  the  recital  of  a  representation 
to  bind  the  trustees. 

*  Smith  V.  Sutton,  Adm'r,  74  Ga.  528.  [  Alumni  v.  Theol.  Seminary, 
49  N.  Y.  S.  745;  Saunders  v.  Richard,  35  Fla.  28,  42;  Sterling  v.  Sterling, 
77  Minn.  12;  Morris  v.  Morris,  48  W.  Va.  430.] 

»  Urch  V.  Walker,  3  My.  &  Cr.  703;  James  v.  Frearson,  1  N.  C.  C.  375; 
1  Y.  «fe  C.  Ch.  370;  Doe  v.  Harris,  16  M.  &  W.  517;  Redenour  v.  Wherritt, 
30  Ind.  485. 

*  Conyngham  v.  Conyngham,  1  Ves.  522. 

*  Harrison  v.  Graham,  1  P.  Wms.  241,  n.;  1  Wms.  Ex'rs,  151;  Hanbury 
V.  Kirkland,  3  Sim.  265;  Christian  v.  Yancey,  2  P.  &  H.  (Va.)  240. 

•  Broadhurst  v.  Balguy,  1  Y.  &  C.  Ch.  16;  Sadler  v.  Hobbs,  2  Bro.  Ch. 
114;  Doyle  v.  Blake,  2  Sch.  &  Lef.  231. 

">  Kennedy  t'.  Winn,  80  Ala.  166. 

•  Montfort  v.  Cadogan,  17  Ves.  487. 

•  Ibid.;  O'NeiU  v.  Henderson,  15  Ark.  235;  Pond  v.  Hine,  21  Conn. 
619;  Penny  t>.  Davis,  3  B.  Mon.  314. 

(a)  He  is  estopped  also  to  deny  Ownes  v.  Ownes,  23  N.  J.  Eq.  60; 
the  validity  of  the  conveyance  to  or  the  legality  of  his  appointment, 
him;  Guilfoil  v.  Arthur,  158  111.  600;     Harbin  v.  Bell,  54  Ala.  389. 

450 


CHAP,  IX. [  ACCEPTANCE    OF   THE    TRUST.  [§  261. 

trust/  or  by  not  objecting  when  the  instrument  of  trust  is 
read  to  him,^  —  all  these  acts  may  be  shown  by  parol,  as  evi- 
dence tending  to  prove  an  acceptance,  and  the  evidence  will 
be  more  or  less  conclusive  according  to  the  circumstances  of 
each  case.  The  general  rule  is,  that  every  voluntary  interference 
with  the  trust  property  will  stamp  a  person  as  an  acting  trus- 
tee,^ unless  such  interference  can  be  plainly  referred  to  some 
other  ground  of  action  than  to  an  acceptance  of  the  trust,  as 
by  showing  that  such  a  person  acted,  in  interfering,  as  the 
mere  agent  of  an  acting  trustee.''  The  mere  fact  that  a  person 
named  as  trustee  in  a  deed  takes  the  custody  of  the  deed  until 
another  trustee  can  be  appointed  is  not  an  acceptance,  because 
his  acts  are  plainly  referable  to  another  ground  of  action.' 
While  parol  evidence  is  competent  to  show  whether  a  supposed 
trustee  has  or  has  not  accepted  the  trust,  it  is  not  competent, 
in  behalf  of  the  trustee,  to  prove  by  such  evidence  the  conversa- 
tions or  declarations  of  the  settlor,  in  order  to  show  what  prop- 
erty was  subject  to  the  trust.^  A  trustee  should  take  care  that 
his  acts  in  relation  to  the  trust  fund  are  plainly  referable  to 
some  certain  ground  of  action;  for  if  his  acts  are  ambiguous,  or 
it  is  doubtful  whether  he  intended  to  accept,  or  to  act  in  some 
other  capacity,  the  doubt  will  be  against  him,  and  he  will  be 

'  James  v.  Freareon,  1  Y.  &  C.  Ch.  375;  Shepherd  v.  McEvere,  4  Johns. 
Ch.  136;  Crocker  v.  lx)wenthal,  83  111.  579. 

*  James  v.  Freareon,  supra;  Chidgey  v.  Harris,  16  M.  &  W.  517;  Butler 
V.  Baker,  3  Co.  26  a;  Hanson  v.  Worthington,  12  Md.  418;  Roberts  v.  Mose- 
ley.  64  Mo.  507. 

'  Whito  V.  Barton,  18  Beav.  192;  Harrison  v.  Graham,  cited  Churchill 
V.  Hobson,  1  P  Wms.  241  n.  (y);  Cummins  v.  Cummins,  8  Ir.  Eq.  723; 
Doyle  V.  Blake,  2  Scb  ^  Lef.  231;  Malzy  v.  Edge,  2  Jur.  (n.  s.)  80;  Lew-is 
V.  Baird,  3  McLean,  56;  Maccubbin  t^.  Cromwell,  7  Gill  &  J.  157;  Penny 
r.  Davis,  3  B.  Mon.  313. 

*  Stacy  V.  Elph,  1  M.  &  K.  195;  'Lowry  t'.  Fulton,  9  Sim.  115;  Dove  v. 
Everard,  1  R.  &  M.  281;  Taml.  376;  Orr  v.  Newton,  2  Cox,  274;  Balchen 
V.  Scott,  2  Ves.  Jr.  678;  Carter  t;.  Carter,  10  B.  Mon.  327;  Judson  i-.  Gibbons, 
5  Wend.  224.  And  the  onus  is  on  the  alleged  trustee.  Kennedy  v.  Winn,  80 
Ala.  165. 

*  Evans  v.  John,  4  Beav.  35;  Smith  r.  Knowles,  2  Grant  Cas.  413. 

*  Doyle  V.  Blake,  2  Sch.  &  Lef.  240. 

451 


§  262.]  ACCEPTANCE    OF    THE    TRUST.  [CHAP.  IX. 

construed   to   have  accepted  the  trust   and  all  its   responsi- 
bilities.^ 

§  261  a.  Sometimes  a  bond  is  required  by  the  instrument 
creating  the  trust,  and  sometimes  the  grantor  expressly  desires 
that  the  trustee  shall  not  be  required  to  give  security.  In  the 
case  of  executors,  statute  law  provides  for  the  giving  of  a  bond,^ 
and  in  relation  to  express  trustees  in  general,  similar  provisions 
may  exist.^  (a) 

§  262.  At  common  law  an  executor  was  said  to  derive  his 
authority  from  the  will,  and  not  from  the  appointment  of  the 
probate  court.^  Therefore  most  of  the  acts  of  persons  nominated 
to  execute  wills  were  valid  before  the  probate  of  the  will.^ 
Thus  persons  appointed  by  a  testator  in  his  will  to  administer 
his  estate,  and  execute  the  trusts  created  by  such  will,  might 
assume  the  trusts  and  proceed  in  the  execution  of  them,  with- 
out presenting  the  will  for  probate;  ^  and  the  same  evidence 
might  be  used  to  show  that  a  trustee  under  a  will  had  accepted 
such  trust,  and  had  assumed  its  responsibilities,  as  was  ad- 
missible to  show  that  a  trustee  under  a  deed  had  accepted 

'  Read  v.  Truelove,  Amb.  417;  Chaplin  v.  Givens,  1  Rice,  Eq.  154;  Doe 
V.  Harris,  16  M.  &  W.  517;  Lowry  v.  Fulton,  9  Sim.  115;  Conyngham  v. 
Conyngham,  1  Ves.  522;  Montgomery  v.  Johnson,  11  Ir.  Eq.  476. 

2  See  §  262. 

3  Bates  V.  State,  75  Ind.  463;  Hinds  v.  Hinds,  85  Ind.  312;  Tucker  «;. 
State,  72  Ind.  242;  Thiebaud  v.  Dufour,  54  id.  620. 

*  Toller's  Ex'rs,  95. 

'  Easton  v.  Carter,  5  Exch.  8;  Venables  v.  East  Ind.  Co.,  2  Exch.  633; 
Toller's  Ex'rs,  46,  47;  Mitchell  v.  Rice,  6  J.  J.  Marsh.  625. 
'  Ibid.;  Vanhome  v.  Fonda,  5  Johns.  Ch.  403. 

(a)  Testamentary    trustees    are  require  one  unless  the  statute  so  pro- 

now  required  to  give  bond  in  nearly  vides.     Ex  parte  Ealgore,   120  Ind. 

all  the  States,  and  in  many  States  a  94;  Foss  v.  Sowles,  62  Vt.  221.     A 

bond  may  be  required  of  other  trus-  valid  provision  that  a  trustee  shall 

tees.  be  immune  from  giving  bond  or  se- 

Where  the  creator  of  the  trust  curity  will  not  usually  be  construed 

has  expressly  provided  that  no  bond  to   extend   to  substituted   trustees, 

ehall  be  required,  the  court  cannot  Sneer  v.  Stutz,  102  Iowa,  462. 

452 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TRUST.  (§  262. 

the  office.'  But  in  nearly  all  the  United  States  there  are  statutes 
upon  the  subject  which  require  that  wills  shall  be  presented 
for  probate,  and  that  executors  and  trustees  under  them  shall 
give  bonds  for  the  faithful  discharge  of  their  duties.  Where  such 
statutes  are  in  force,  executors  or  trustees  have  no  power  or 
authority  to  act  without  appointment  by  the  probate  court, 
and  a  refusal  or  neglect  to  qualify  by  giving  bonds  will  be  con- 
sidered a  refusal  and  disclaimer  of  the  trust.^  In  the  absence 
of  such  statutes,  if  a  person  named  as  executor  procures  pro- 
bate of  the  will,  he  will  thereby  constitute  himself  executor 
with  all  the  liabilities  attached  to  the  office,^  and  if  the  same 
])erson  is  appointed  executor  and  trustee,  probate  of  the  will  by 
him  will  be  an  acceptance  of  the  trusts.^    But  the  same  person 

'  Conyngham  v.  Conyngham,  1  Ves.  522;  Doyle  v.  Blake,  2  Sch.  & 
Lef.  231;  James  v.  Frearson,  1  Y.  &  C.  Ch.  370;  Maccubbin  v.  Cromwell, 
7  Gill  &  J.  157;  Godwin  v.  Yonge,  22  Ala.  553;  Latimer  v.  Haneon,  1  Bland, 
51;  Flint  v.  Clinton  Co.,  12  N.  H.  432;  Chaplin  v.  Givens,  1  Rice,  Eq.  133; 
Baldwin  t'.  Porter,  12  Conn.  473. 

*  LuBcomb  V.  Ballard,  5  Gray,  403;  Monroe  v.  James,  4  Munf.  195; 
Trask  v.  Donahue,  1  Aik.  (Vt.)  373;  Carter  v.  Carter,  10  B.  Mon.  327; 
Mitchell  V.  Rice,  6  J.  J.  Marsh.  625;  Robertson  v.  Gaines,  2  Humph.  381, 
Johnson's  App.,  9  Barr,  416;  Simpson's  App.,  id.;  Wood  v.  Sparks,  1  Dev. 

6  Bat.  396;  Miller  v.  Meetch,  8  Barr,  417;  Roseboom  v.  Moehier,  2  Denio, 
61;  Williams  v.  Gushing,  34  Maine,  370;  Deering  v.  Adams,  37  id.  265; 
I&ight  V.  Loomis,  30  id.  208;  Groton  v.  Ruggles,  17  id.  137;  Hanson  v. 
Wortliington,  12  Md.  418;  Sawyer's  App.  16  N.  H.  459;  Gaskill  v.  Gaskill, 

7  R.  1.  478;  Mahony  v.  Hunler,  30  Ind.  246;  infra,  §  264,  n.  In  many  of 
the  States  there  are  statutes  that  authorize  the  judges  of  probate  to  ap- 
point executors  or  trustees  under  wills,  without  requiring  bonds  with 
sureties,  if  the  testator  request  it  in  his  will,  or  if  all  the  parties  in  interest, 
being  sui  juris,  request  it  in  writ  ing.  In  such  cases  the  court  proceeds  with 
great  caution,  and  it  may  at  any  time  require  security  if  the  circumstances 
seem  to  require  it.  Gibbs  v.  Guignard,  1  S.  C.  359.  In  some  jurisdictions 
the  omission  to  give  the  bond  required  does  not  divest  the  trustee  of  the 
legal  title.  Gardner  v.  Brown,  21  Wall.  36.  [  Philbin  v.  Thurn,  103  Md. 
342;  Attwill  v.  Dole,  74  N.  H.  300;  McWilliams  v.  Gough,  116  Wis.  576.] 

»  Booth  V.  Booth,  1  Beav.  125;  Ward  v.  Butler,  2  Moll.  533;  Styles  v. 
Guy,  1  Mac.  &  G.  431;  Scully  v.  Delaney,  2  Ir.  Eq.  165;  and  see  Balchen 
f;.  Scott,  2  Ves.  Jr.  678;  Peeble's  App.,  15  Serg.  &  R.  39;  Worth  v.  McAden, 
1  Dev.  &  Bat.  Eq.  209;  Cummins  i'.  Cummins,  3  Jon.  &  La.  64;  Hanson 
V.  Worthington,  12  Md.  418. 

*  Mucklow  V.  Fuller,  Jac.  198;  Williams  v.  Nixon,  2  Beav.  472;  Clarke 

453 


§  262.]  ACCEPTANCE    OF   THE   TRUST.  [CHAP,  IX. 

may  be  appointed  both  executor  and  trustee  under  a  will  in 
such  a  manner  that  he  may  accept  one  of  the  offices  and  decline 
the  other.  As  if  a  man  is  appointed  executor,  and  as  executor 
is  to  act  as  a  trustee,  in  such  case  the  probate  of  the  will,  and 
qualification  as  executor,  will  be  an  acceptance  of  the  trust.^  (a) 
But  if  from  the  will  it  appears  that  the  testator  intended  to 
give  his  trustees  a  distinct  and  independent  character,  probate 
of  the  will  by  the  executors  will  not  make  them  trustees,  unless 
they  also  accept  the  trust  and  qualify  themselves  according 
to  law.^  If  the  executor  is  not  expressly  appointed  trustee,  the 
court  may  determine  from  the  whole  will  whether  he  is  to  act 
as  trustee.^    If  the  trust  is  given  to  one  named,  and  the  same 

V.  Parker,  19  Ves.  1;  Cummins  v.  Cummins,  3  Jon.  &  La.  64;  Hanson  v. 
Worthington,  12  Md.  418;  Baldwin  v.  Porter,  12  Conn.  473. 

1  De  Peyster  v.  Clendining,  8  Paige,  295;  Hanson  v.  Worthington,  12 
Md.  418;  Williams  v.  Conrad,  30  Barb.  524;  Mucklow  v.  Fuller,  Jac.  198; 
Booth  V.  Booth,  1  Beav.  125;  Williams  v.  Nixon,  2  Beav.  472;  Ward  v.  But- 
ler, 2  Moll.  533;  Wilson's  Estate,  2  Penn.  St.  325. 

*  De  Peyster  v.  Clendining,  8  Paige,  295;  Worth  v.  McAden,  1  Dev. 
&  Bat.  209;  Judson  v.  Gibbons,  5  Wend.  226;  Williams  v.  Cushing,  34  Maine, 
370;  Deering  v.  Adams,  37  id.  265;  Knight  v.  Loomis,  30  id.  204;  Hanson 
V.  Worthington,  12  Md.  418;  Wheatley  v.  Badger,  7  Penn.  St.  459.  But 
see  Anderson  v.  Earle,  9  S.  C.  460. 

2  Sawyer's  App.,  16  N.  H.  459;  Carson  v.  Carson,  6  Allen,  397;  How- 
ard V.  Amer.  Peace  Soc,  49  Maine,  288,  306.  An  executor  must  admin- 
ister the  trust  created  by  will  where  there  is  no  designation  of  the  execu- 
tor or  any  other  person  as  trustee.  Pettingill  v.  Pettingill,  60  Maine,  412; 
Richardson  v.  Knight,  69  id.  385. 

(a)  In    jurisdictions    where    by  scribe  him  as  such.    Angus  v.  Noble, 

statute    testamentary    trustees    are  73  Conn.  56;  Seattle  v.  McDonald, 

required  to  give  bond  as  such  as  a  26  Wash.  98;  In  re  Hodges'  Estate, 

necessary  qualification,   it  may  be  63  Vt.  661 ;  Codman  r.  Brigham,  187 

questioned  whether  an  executor  to  Mass.  309;  Bean  v.  Commonwealth, 

whom  trust  duties  and  powers  are  186  Mass.  348;  Hay  ward  ( .  Spauld- 

given  becomes  a  real  trustee  when  ing,  71  A.  219  (N.  H.  190S);  Camp- 

the  only  bond  he  has  filed  is  as  exec-  bell  v.  Clough,  71  N.  H.  181.    And  if 

utor.      See  Bean  v.  Commonwealth,  without  giving  bond  a.s  trustee  he 

186  Mass.  348.     If  he  is  given  the  performs  the  functions  of  one,  his 

duties  of  a  trustee,  he  imdoubtedly  liability  is  that  of  a  trustee,  for  he  is 

has  the  right  to  qualify  as  trustee,  at  least  trustee  de  son  tort. 
even  though  the  will  does  not  de- 
454 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TRUST.  [§  202. 

person  is  afterwards  appointed  executor,  the  trust  is  not  annexed 
to  the  office  of  executor.'  (a)  The  conditions  of  bonds  of  ad- 
ministrators are  to  administer  the  estate  according  to  law. 
Bonds  of  executors  are  conditioned  to  administer  an  estate 
according  to  the  will,  though  a  condition  to  administer  accord- 
ing to  law  is  the  same  thing,  because  by  law  they  are  to  admin- 
ister according  to  the  will.  If,  therefore,  by  the  terms  of  the 
will  the  executor,  as  executor,  is  to  keep  the  estate,  or  any 
portion  of  it,  in  his  hands,  and  is  to  deal  with  it  as  a  trustee, 
his  bond  will  be  held  as  security  for  the  faithful  performance  of 
his  duties,  though  such  duties  are  much  larger  and  different 
from  those  of  an  ordinary  executor.^  Where  the  income  of 
property  is  given  to  one  for  life,  and  at  his  death  the  property 
is  given  over  to  another,  and  no  trustee  is  named  in  the  will, 
the  executor  is  the  trustee  to  hold  the  property  during  the  life 
of  the  legatee  for  life.^  If,  however,  the  will  contemplates  that 
the  executor,  as  such,  is  to  perform  only  the  ordinary  duties 
of  an  executor,  and  that  when  the  estate  is  settled  by  him, 
another  duty  is  to  arise  to  be  performed,  either  by  him  or  by 
another,  then  the  bond  of  the  executor  is  not  security  for  those 
further  duties;  but  the  person  who  is  to  perform  them  must 

'  James's  App.,  3  Grant,  169.  [  West  t'.  Bailey,  196  Mo.  517.] 
*  Saunderson  v.  Steams,  6  Mass.  37;  Prescott  v.  Pitts,  9  Mass.  376; 
Hall  V.  Gushing,  9  Pick.  395;  Dorr  v.  Wainwright,  13  Pick,  328;  Towne 
V.  Ammidown,  20  Pick.  325;  Perkins  v.  Moore,  16  Ala.  9;  State  v.  Nicols, 
10  Gill  &  J.  27;  Wilson's  Estate,  2  Penn.  St.  325;  Sheet's  Est.,  52  id.  257; 
Lansing  v.  Lansing,  45  Barb.  182. 

3  Wheeler  v.  Perry,  18  N.  H.  307.  [  Glifford  v.  Stewart,  95  Me.  38; 
Carson  v.  Carson,  6  Allen,  398;  Bullard  v.  Chandler,  149  Mass.  532;  White 
V.  Mass.  Inst,  of  Technology,  171  Mass.  84;  Clark  v.  Powell,  62  Vt. 
442.] 

(a)  WTiere    a   person    has    been  tion  is  that  the  testator  intended  the 

named   in   a  will   as  executor  and  revocation  and  the  new  nomination 

given  duties  and  powers  of  a  trustee,  to  apply  to  the  trust  functions  as 

though  not  named  as  such,  and  a  well  as  to  the  executorship.     Mul- 

codicil  to  the  will  has  revoketl  his  lanny  v.  Nangle,  212  111  247;  Shey's 

nomination    as    executor    and    has  Appeal,  73  Conn.  122;  Cushman  v. 

named  another  person,  the  prcsump-  Cushman,  116  N.  Y.  App.  Div.  763. 

455 


§  263.]  ACCEPTANCE    OF   THE   TRUST.  [CHAP.  DC. 

accept  the  office,  and  give  a  bond  for  their  performance.^  It 
may  be  further  observed,  that  an  executor  will  be  considered 
as  holding  a  legacy  in  his  capacity  as  executor,  unless  the  will 
clearly  shows  that  the  testator  intended  that  he  should  hold 
it  in  the  character  of  a  trustee.^  But  after  the  lapse  of  twenty 
years  the  law  will  presume  that  an  estate  was  fully  administered, 
and  that  thereafter  the  executor  held  the  funds  as  trustee.^ 
So,  if  it  appears  that  the  executor  made  an  actual  final  settle- 
ment of  the  estate  as  executor,  he  will  be  presumed  to  hold 
subsequently  as  a  trustee.*  As  a  general  rule,  executors'  and 
trustees'  bonds  can  be  sued  only  by  leave  of  court,  upon  good 
cause  shown.^ 

§  263.  If  the  same  person  is  both  executor  and  trustee,  it 
is  sometimes  difficult  to  determine  whether,  in  a  particular 
case,  he  is  acting  as  executor  or  trustee.  In  England,  the  rule 
seems  to  be  that  if  the  executor  assents  to  the  legacy,  if  it  is 
specific,  or  if  part  of  the  assets  are  clearly  set  apart  and  appro- 
priated by  him  to  answer  a  particular  legacy,  he  will  be  consid- 
ered to  hold  the  fund  as  trustee  for  that  trust,  and  not  as 
executor.®  In  jurisdictions  where  executors  and  trustees  are 
required  to  qualify  and  give  bonds,  it  has  been  held  that  an  exe- 
cutor, who  is  also  a  trustee  under  the  will,  cannot  be  considered 
as  holding  any  part  of  the  assets  as  trustee,  until  he  has  settled 
his  account  at  the  probate  office  as  executor,  and  has  been 
credited  with  the  amount  as  executor  with  which  he  is  after- 


»  Knight  V.  Loomis,  30  Maine,  204;  Mastin  v.  Barnard,  33  Ga.  520; 
Perkins  v.  Lewis,  41  Ala.  649;  Parsons  v.  Lyman,  5  Blatch.  C.  C.  170;  Spark's 
Est.,  1  Tuck.  Sur.  443. 

2  State  V.  Nicols,  10  Gill  &  J.  27. 

^  Jennings  v.  Davis,  5  Dana,  127. 

*  State  V.  Hearst,   12  Miss.  365. 

»  Floyd  V.  Gilliam,  6  Jones,  Eq.  183. 

"  Dix  V.  Burford,  19  Beav.  409;  Brougham  v.  Poulett,  id.  119;  Ex  parte 
Dover,  5  Sim.  500;  Phillipo  v.  Munnings,  2  M.  &  Cr.  309;  Byrohall  v.  Brad- 
ford, 6  Madd.  13;  Ex  parte  Wilkinson,  3  Mont.  &  Ayr.  145;  Willmot  v. 
Jenkins,  1  Beav.  401. 
456 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TRUST.         l§  263. 

wards  to  be  charged  as  trustee.'  In  other  cases  it  has  been  held 
that  the  change  of  property  from  the  executor  to  the  trustee, 
where  they  are  the  same  persons,  may  be  shown  by  some  ait- 
thoritative  and  notorious  act;^  but  that  the  mere  determination 
of  the  executor,  in  his  own  mind,  to  hold  certain  particular 
property  thereafter  in  trust  for  a  particular  legatee  under  the 
will,  is  not  such  a  setting  apart  as  to  discharge  him  from  his 
liability  as  executor,  and  to  charge  him  as  trustee.'  (a)    WTiere 

'  Hall  V.  Gushing,  9  Pick.  395;  Prior  v.  Talbot,  10  Gush.  1;  Perkins  v. 
Moore,  16  Ala.  9;  Elliott  v.  Sparrell,  114  Mass.  404;  Muse  v.  Sawyer,  T.  R. 
204.  [White  t;.  Ditson,  140  Mass.  351;  3  Williams  on  Executors,  (7th 
Am.  ed.)  p.  378,  note.] 

^  Newcomb  v.  Williams,  9  Met.  534;  Conkey  v.  Dickinson,  13  Met.  53; 
Hubbard  v.  Lloyd,  6  Gush.  522;  De  Peyster  v.  Glendining,  8  Paige,  310; 
Byron  v.  Mood,  2  McMull.  288;  Hitchcock  v.  Bank  of  U.  S.,  7  Ala.  386; 
Perkins  v.  Moore,  16  Ala.  9;  State  v.  Brown,  68  N.  C.  554;  Tyler  v.  Deb- 
lois,  4  Mason,  131.  [  See  In  re  Sanborn's  Estate,  109  Mich.  191;  Wooden 
V.  Kerr,  91  Mich.  188.]  A  defaulting  trustee  who  becomes  entitled  to  a 
portion  of  the  trust,  being  one  of  the  next  of  kin  to  a  deceased  cestui  que 
trust,  will  be  held  to  have  paid  himself,  and  the  share  standing  to  his  ac- 
count on  distribution  will  be  paid  to  the  other  cestui  que  trust,  to  the  extent 
of  the  defalcation,  Jacobs  v.  Ryland,  L.  R.  15  Eq.  341.  See  Ruffin  v.  Har- 
rison, 81  N.  C.  208,  in  which  the  court,  from  an  examination  of  the  cases 
cited,  deduced  the  following  principles:  1.  Where  the  simple  relation  of 
debtor  and  creditor  exists,  and  the  same  person,  representing  both,  is  to 
pay  and  receive,  the  possession  of  assets  which  ought  to  be  applied  to  the 
debts  is  in  law  an  application.  2.  Where  one  is  clothed  with  a  double 
fiduciary  capacity,  and  the  balance  remaining  upon  a  full  execution  of  one 
trust  belongs  to  the  other,  if  the  amount  has  been  ascertained  definitely  and 
authoritatively,  and  the  fund  is  then  in  the  trustee's  hands,  the  law  makes 
the  transfer.  3.  If  the  first  trust  is  not  closed,  although  the  trustee  may 
have  rendered  an  account,  which  has  not  been  passed  upon  by  a  competent 
tribunal,  the  fund  remains  unchanged,  and  is  held  as  before.  4.  The 
trustee  may,  by  an  unequivocal  act  indicating  the  intent,  elect  to  hold  the 
fund  in  possession  in  another  capacity',  and  it  will  be  thereby  transferred. 

'  Miller  v.  Gongdon,  14  Gray,  114.  The  question,  in  this  case,  was 
whether  the  estate  or  the  legatee  should  suffer  a  certain  loss;  but  it  was 
not  a  question  whether  the  executor  should  bear  the  loss  in  person.  [  Shef- 
field V.  Parker,  158  Mass.  330;  GoUins  v.  GoUins,  140  Mass.  502.] 

(a)  He  may  be  held  to  be  trustee  counted    as  executor   in    the  State 

in   another   State  with   respect   to  where  he  was  appointed  as  such. 

assets  which  he  originally  held  as  Farmers'  L.  &  Tr.  Go.  r.  Pendleton, 

executor,  although  he  has  never  ac-  75  N.  Y.  S.  294. 

457 


§  263.] 


ACCEPTANCE    OF   THE   TRUST. 


[chap.  IX. 


the  executor  may  thus  act  in  a  double  capacity,  he  must  account 
in  his  capacity  as  executor,  and  the  sureties  on  his  bond  as 
executor  will  be  liable  for  the  faithful  discharge  of  his  duties 
as  such,  until  he  has  transferred  his  account  to  himself  as 
trustee,  and  given  a  bond  as  trustee.^  (cl)  But,  at  the  same 
time,  it  is  held  that  if  the  executor,  acting  as  trustee  under 
such  a  will,  acts  with  fidelity  and  due  diligence,  he  and  his 
sureties  will  not  be  responsible  should  any  loss  happen  either 
to  the  principal  or  interest' of  the  trust  fund;  that  is,  that  his 
liability  in  such  a  case  is  rather  that  of  a  trustee  than  that  of  an 
executor;  ^  (b)  and  if  he  has  acted  in  good  faith  in  the  invest- 

1  Prior  V.  Talbot,  10  Gush.  1.  [See  In  re  Roach's  Estate,  50  Or.  179; 
Bellinger  v.  Thompson,  26  Or.  320.]  A  charge  of  the  amount  set  apart  in 
executor's  account  settled  in  probate  court  is  conclusive  against  the  ex- 
ecutor.   Elliott  V.  Sparrell,  114  Mass.  404. 

2  Hubbard  v.  Lloyd,  6  Gush.  522;  Brown  v.  Kelsey,  2  Gush.  248;  Dorr 
V.  Wainwright,  13  Pick.  332;  Right  v.  Gathill,  5  East,  491;  Denne  v.  Judge, 
11  East,  288. 


(a)  Probably  this  rule  would  not 
be  applied  to  a  liabihty  for  mere 
failure  to  perform  a  duty  which  is 
distinctly  a  trust  duty.  Perkins  v. 
Lewis,  41  Ala.  649. 

(6)  So  too,  as  to  the  effect  of  the 
act  upon  the  property  when,  as  may 
happen  in  rare  cases,  it  makes  a 
material  difference  whether  he  acted 
as  executor  or  trustee,  the  nature  of 
the  act  may  determine  in  what  ca- 
pacity he  acted.  Vohmann  v.  Mich- 
el, 96  N.  Y.  S.  309;  109  App.  Div. 
659  (reversed  on  other  grounds  in 
185  N.  Y.  420) ;  PhUbin  v.  Thum, 
103  Md.  342.  See  contra,  In  re 
Roach's  Estate,  50  Or.  179.  See  1 
Ames'  Gases  on  Trusts,  (2d  ed.)  73. 

The  cases  holding  the  executor- 
trustee  hable  on  his  bond  as  executor 
for  all  his  dealing  with  the  estate 
which  has  come  into  his  hands  as 
executor  and  whidi  he  has  not  for- 

458 


mally  turned  over  to  himself  as 
trustee,  do  not  seem  to  go  to  the  ex- 
tent of  holding  that  he  cannot  prop- 
erly perform  trust  duties  until  he  has 
been  discharged  as  executor.  In  a 
case  where  the  executor-trustee  had 
turned  over  to  himself  as  trustee 
certain  investments,  accounting  for 
them  at  par  value,  it  was  held  that 
the  allowance  of  his  final  accovmt  as 
executor  did  not  preclude  a  subse- 
quent inquiry  as  to  the  propriety  of 
the  investment.  Mattocks  v.  Moul- 
ton,  84  Me.  545,  549. 

In  Brigham  v.  Morgan,  185  Mass. 
27,  it  was  held  by  a  divided  court 
that  a  person  who  is  both  executor 
and  trustee  may  be  liable  in  both 
capacities  for  the  loss  due  to  an  im- 
proper investment  made  by  him- 
self and  another  as  co-executors  and 
turned  over  to  himself  as  trustee  at 
its  face  value.    There  was,  however, 


CHAP.  IX.]      EXECUTOR  OF  AN  EXECUTOR.  [§  264. 

ment  of  the  legacy,  any  loss  that  may  occur  without  his  fault 
will  fall  upon  the  legatee  or  cestui  que  trust,  and  not  upon  him 
or  the  estate.^  Where  a  decree  in  chancery  created  a  separate 
estate  for  a  married  woman,  and  the  court  appointed  a  trustee 
to  receive  it,  and  ordered  him  to  give  bond  for  the  faithful  ad- 
ministration of  the  trust,  the  property  vested  in  him  upon  his 
giving  bond,  and  continued  during  his  life;  and,  at  his  death, 
it  did  not  vest  in  the  cestui  que  trust,  but  remained  subject  to 
the  orders  of  the  court.^ 

§  264.  The  executor  of  an  executor,  by  accepting  the  office 
from  his  immediate  testator,  becomes  the  executor  and  trus- 
tee of  his  testator's  testator,  (a)  This  is  the  rule  in  England, 
where  an  executor  comes  into  possession  of  all  the  assets  in 
the  hands  of  his  testator,  in  whatever  capacity  such  testator 
held  them;  and,  by  accepting  the  duty  of  administering  the 
estate  of  his  immediate  testator,  he  accepts  the  duty  of  ad- 
ministering all  the  trusts  with  which  the  assets  in  his  testa- 

»  Ibid. 

*  Witter  V.  Duley,  36  Ala.  135. 

a  strong  diBsent  by  three  judges  as  (a)  In  the  United  States  the  ex- 
to  the  liabihty  of  the  trustee,  the  ecutor  of  a  trustee  does  not  usually 
entire  loss  having  occurred  before  succeed  to  the  office.  Although  the 
the  investment  had  been  turned  title  of  trust  personalty  may  pass  to 
over.  him  charged  with  the  trust,  his  only 
Where  there  is  a  separate  and  duty  is  to  preserve  it  intact  for  a 
distinct  portion  of  the  estate  set  substituted  trustee  to  be  appointed 
apart  for  the  trust  and  never  vesting  by  the  court.  In  this  respect  his 
in  the  executor,  aa  where  the  trust  duties  have  been  likened  to  those  of 
is  of  real  estate,  which  is  not  needed  a  bailee.  State  v.  Miss.  Valley  Trust 
to  pay  debts  or  legacies,  it  has  been  Co.,  209  Mo.  472;  In  re  Scott's  Es* 
held  that  there  is  no  reason  why  the  tate,  202  Pa.  St.  389;  Burke  v.  Ma- 
same  person  should  not  at  the  same  guire,  154  Cal.  456;  Reichert  v.  Mo. 
time  be  both  executor  and  trustee  of  <fe  111.  Coal  Co.,  231  111.  238.  In  som© 
the  different  parts  of  the  estate.  States  statutes  have  pro\nded  that 
Dingman  i;.  Beall,  213  111.  238.  See  the  title  of  trust  property  shall  not 
also  Creamer  v.  Holbrook,  99  Ala.  pass  either  to  the  trustee's  heir  or  to 
52;  Farmers'  Loan  &  Trust  Co.  i'.  his  personal  representatives.  See 
Pendleton,  75  N.  Y.  S.  294.  infra,  §  269  note. 

459 


§  264.]  ACCEPTANCE    OF   THE    TRUST.  [CHAP.  IX. 

tor's  hands  were  charged.^  An  executor  must  administer  and 
account  for  all  the  assets  that  come  to  his  hands.  If  his  testator 
held  goods  of  a  previous  testator  unadministered,  or  if  his  tes- 
tator held  assets  as  a  trustee,  probate  courts  may  appoint  an 
administrator  with  the  will  annexed  of  the  first  testator,  or  a  new 
trustee;  and  it  will  be  the  duty  of  the  executor  of  the  last  tes- 
tator to  settle  an  account  with  the  administrator  with  the  will 
annexed,  or  with  the  new  trustee,  and  to  pay  over  to  them  the 
assets  that  came  to  his  hands.  Until  such  proceedings  are  had, 
he  will  hold  such  assets  upon  the  same  terms  and  trusts  that  his 
testator  held  them ;  and  it  will  be  his  duty  to  administer  them 
accordingly.  The  proposition  may  be  briefly  stated  thus:  An 
executor,  in  proving  the  will  and  in  accepting  the  office  from 
his  immediate  testator,  accepts  not  only  all  the  trusts  imposed 
by  the  immediate  will  under  which  he  acts,  but  also  all  the 
trusts  in  respect  to  the  assets  which  come  to  his  hands  with 
which  his  immediate  testator  was  charged;  and  he  must  exe- 
cute those  trusts  until  he  is  relieved  by  a  new  appointment  in 
the  probate  court,  and  a  settlement  and  payment  over  of  the 
assets.  He  will  not  be  allowed  to  accept  the  trusts  created  by  his 
immediate  testator,  and  to  repudiate  those  with  which  his 
testator  was  himself  charged.^  And  so,  a  trustee  cannot  limit 
his  acceptance  and  liability  to  any  particular  portion  of  the 
trust.  For  if  he  acts  at  all,  though  he  disclaim  a  part  he  will 
be  held  to  have  accepted  the  entire  trust ;  ^  as  if  one  is  appointed 

1  In  the  Goods  of  Perry,  2  Curt.  655;  Goods  of  Beer,  15  Jur.  160;  Shep. 
Touch,  by  Preston,  464;  Wankford  v.  Wankford,  Freem.  520;  Haytan  v. 
Wolfe,  Cro.  Jac.  614;  Palm.  156;  Hutt,  50;  Schenck  v.  Schenck,  16  N.  J. 
Eq.  174;  Maudlin  v.  Armisted,  18  Ala.  702;  Nichols  v.  Campbell,  10  Gratt. 
551.  See  Knight  v.  Loomis,  30  Me.  204,  where  it  is  said  that  an  adminis- 
trator de  bonis  non  under  the  will  of  a  trustee  is  not  constituted  trustee  by 
his  appointment. 

2  Worth  V.  McAden,  1  Dev.  &  Bat.  199;  Mitchell  v.  Adams,  1  Ired. 
(Law)  298;  King  ;;.  Lawrence,  14  Wis.  238;  Schenck  v.  Schenck,  1  Green, 
Ch.  174.    [  But  see  In  re  Ridley,  [1904]  2  Ch.  774.] 

3  Urch  V.  Walker,  3  M.  &  Cr.  702;  Read  v.  Truelove,  Amb.  417;  Doyle  v. 
Blake,  2  Sch.  &  Lef.231;  Van  Horn  «.  Fonda,  5  Johns.  Ch.  403;  Champlin  v. 
Givens,  1  Rice,  Eq.  154;  Cummins  v.  Cummins,  3  Jon.  &  La.  64;  Latimer 
u.  Hanson,  1  Bland,  51;  Flint  v.  Clinton  Co.,  12  N.  H.  432. 

460 


CHAP.  IX. 1 


TRUSTEE  DE  SON  TORT. 


[§  265. 


trustee  of  real  and  personal  estate,  and  he  deals  with  the  per- 
sonal, he  will  be  deemed  to  have  accepted  the  entire  trust;* 
and  so,  if  the  same  instrument  appoints  him  to  two  distinct 
trusts,  he  cannot  divide  them.^  (a) 

§  265.  If  a  person  wrongfully  interferes  with  the  assets  of 
a  deceased  person,  he  may  become  an  administrator  or  exec- 
utor de  son  tort.  So,  if  a  person  by  mistake  or  otherwise  as- 
sumes the  character  of  trustee,  and  acts  as  such,  when  the 
oflBce  does  not  belong  to  him,  he  thereby  becomes  a  trustee 
de  son  tort,  and  he  may  be  called  to  account  by  the  cestui  que 
trust  for  the  assets  received  under  color  of  the  trust.^ 

1  Ward  V.  Butler,  2  Moll.  533. 

*  Urch  V.  Walker,  3  M.  &  Cr.  702;  Judice  v.  Prevoet,  18  La.  An.  601. 

»  Pearce  v.  Pearce,  22  Beav.  248;  Life  Ass'n  v.  Siddall,  3  De  G.,  F.  &  J. 


(a)  When  the  same  person  is 
nominated  by  a  will  as  both  e.xecu- 
tor  and  trustee,  one  of  these  trusts 
may  be  accepted  and  the  other  dis- 
claimed, if  the  testator  has  not  di- 
rected otherwise;  West  v.  Bailey,  196 
Mo.  517;  Daggett  v.  White,  128 
Mass.  398;  and,  in  general,  the  dis- 
claimer of  one  of  several  trusts, 
when  independent  although  created 
by  the  same  instrument,  does  not  pre- 
vent acceptance  of  the  other  trusts. 
Re  Cunard's  Tru.sts,  48  L.  J.  n.  8. 
192;  Carruth  v.  Carruth,  148  Mass. 
431.  A  person  named  as  trustee  of 
both  English  and  foreign  property 
cannot  make  a  partial  disclaimer  of 
the  trusts  of  English  property  and 
retain  control  of  the  foreign  prop- 
erty. In  re  Lord  and  FuUerton's 
Contract,  [1896]  1  Ch.  228  . 

When  an  executor  with  trust 
duties  dies,  resigns,  or  refuses  to 
serve,  and  an  administrator  de  bonis 
noil  is  appointed  by  the  court,  the 
better  practice  is  to  appoint  him 
also  as  substituted  trustee,   for  in 


general  the  administrator  de  bonis 
non  succeeds  only  to  the  office  of 
executor  and  his  appointment  is  not 
even  a  tender  to  him  of  the  office  or 
powers  of  trustee.  This  is  undoubt- 
edly true  when  the  trust  is  clearly 
separate  from  the  executorship. 
Knight  V.  Loomis,  30  Me.  204;  Penn 
V.  Fogler,  182  111.  76;  Casselman  v. 
McCooley,  73  N.  J.  Eq.  253;  Morde- 
cai  V.  Schirmer,  38  S.  C.  294;  Dun- 
ning V.  Ocean  Bank,  61  N.  Y.  497; 
Greenland  v.  Waddell,  116  N.  Y. 
234.  It  has  been  held,  however,  in 
some  cases  that  when  the  trust  is 
attached  to  the  office  of  executor,  it 
goes  to  the  administrator  de  bonis 
non  with  the  will  annexed  by  vir- 
tue of  his  appointment  as  such. 
Clifford  V.  Stewart,  95  Me.  38;  Clark 
V.  Powell,  62  Vt.  442;  Sheets's  Es- 
tate, 215  Pa.  St.  164.  See  Freeman 
V.  Brown,  115  Ga.  23. 

Doubtless  this  would  be  held  true 
generally  of  a  power  of  sale  for  the 
purpose  of  paying  debts.  Joralemon 
V.  Van  Riper,  44  N.  J.  Eq.  299. 

461 


§  267.]  DISCLAIMER    OF   THE    TRUST.  [CHAP.  IX. 

§  266.  When  trustees  have  accepted  the  office,  they  ought 
to  bear  in  mind  that  the  law  knows  no  such  person  as  a  passive 
trustee,  and  that  they  cannot  sleep  upon  their  trust.  If  such 
trustee  remains  quiet  for  any  reason,  and  suffers  some  other 
to  do  all  the  business,  and  yet  executes  formal  papers,  as  a 
power  of  attorney  for  the  sale  of  stock,  or  a  release  or  discharge 
of  mortgages  on  payment,  he  is  answerable  for  the  money  as 
if  he  had  conducted  the  business.  And  further,  the  trustee 
should  make  himself  acquainted  with  the  nature  and  circum- 
stances of  the  property;  for  though  he  is  not  responsible  for 
anything  that  happens  before  his  acceptance  of  the  trust,^  yet 
if  a  loss  occurs  from  any  want  of  attention,  care,  or  diligence 
in  him  after  his  acceptance,  he  may  be  held  responsible  for 
not  taking  such  action  as  was  called  for.^  (a) 

§  267.  It  has  been  seen  that  a  person  named  as  trustee, 
either  in  a  deed  or  will,  may  decline  the  office  and  disclaim  the 
estate.'  If  he  does  so,  he  ought  to  execute  an  effectual  dis- 
claimer without  delay,  for  after  a  long  interval  of  time  it  will 
be  presumed  that  he  accepted  the  office.'*  If  a  person  knows  of 
his  appointment,  and  lies  by  for  a  long  time,  it  is  for  the  court 
to  say  whether,  under  all  the  circumstances,  such  acquiescence 

58;  Hennessey  v.  Bray,  33  Beav.  96;  Rackham  v.  Siddall,  18  Sim,  297;  1 
Mac.  &  G.  607.    [  Supra,  §  245.] 

»  Greaves  v.  Strahan,  8  De  G.,  M.  &  G.  291;  Prindle  v.  Holcombe,  245. 
Conn.  Ill;  Stevens  v.  Gaylord,  11  Mass.  269;  Ips  Manuf.  Co.  v.  Story, 
5  Met.  310;  Leland  v.  Felton,  1  Allen,  531;  Kinney  v.  Ensign,  18  Pick.  236. 
[  But  see  Brigham  v.  Morgan,  185  Mass.  27.] 

2  England  v.  Downes,  6  Beav.  269,  279;  Townley  v.  Bond,  2  Conn.  & 
Laws.  405;  James  v.  Frearson,  1  Y.  &  C.  Ch.  270;  Taylor  v.  Millington, 
4  Jur.  (n.  s.)  204;  Ex  parte  Greaves,  25  L.  J.  53;  2  Jur.  (n.  b.)  253;  Malzy 
V.  Edge,  2  Jur  (n.  a.)  8. 

'  Ante,  §  259. 

*  Ibid. 

(a)  Thus  he  may  make  himself     sor  a  loss  to  the  trust   fund    occa- 
liable  for  loss  due  to  his  failure  to     sioned  by  the  latter's  breach  of  trust, 
take  necessary  proceedings  to  col-     Bennett  v.  Pierce,  188  Mass.  186. 
lect  from  the  estate  of  his  predeces- 
462 


CHAP.  IX.]  DISCLAIMER    OF   THE    TRUST.  (§  268. 

was  an  assent  to  the  trust.'  But  if  a  trustee  does  no  act  in  the 
office,  there  is  no  rule  that  requires  him  to  disclaim  within  any 
particular  time.  Thus,  he  may  disclaim  after  sixteen  years  if 
the  delay  can  be  so  explained  as  to  rebut  the  presumption  of  an 
acceptance.^  A  disclaimer  will  take  effect  as  of  the  time  of 
the  gift,  and  will  prevent  the  estate  from  vesting  in  the  trustee 
disclaiming;  therefore,  a  disclaimer,  whenever  made,  will  relate 
back  to  the  time  of  the  gift,  if  the  party  disclaiming  has  done 
no  act  which  may  be  construed  into  an  acceptance.  It  is  there- 
fore immaterial  when  the  mere  formal  instrument  of  disclaimer 
is  executed,  provided  that  nothing  has  intervened  to  vest  the 
estate  in  the  trustee.^ 

§  268.  If  a  person  has  once  accepted  the  oflBce,  either  ex- 
pressly or  by  implication,  it  is  conclusive;  and  he  cannot  after- 
wards, by  disclaimer  or  renunciation,  avoid  its  duties  and 
responsibilities.*  And  the  reason  is,  that,  if  the  estate  has  once 
vested  in  the  trustee,  it  cannot  be  divested  by  a  mere  disclaimer, 
or  renunciation,  nor  can  he  convey  the  estate  against  the  con- 
sent of  the  cestui  que  trust  without  committing  a  breach  of 
trust,  unless  the  instrument  creating  the  trust  gives  him  that 
power,  or  unless  there  is  the  decree  of  a  court  to  that  effect. 
In  such  case  the  trustee  may  resign  the  trust,  and  convey  the 
estate  in  the  manner  pointed  out  in  the  instrument  creating  the 
trust,  if  it  speaks  upon  that  subject;  or  the  trustee  may  decline 

1  Doe  V.  Harris,  16  M.  &  W.  517;  Paddon  v.  Richardson,  7  De  G.,  M. 
&  G.  563;  James  v.  Frearson,  1  Y.  &  C.  Ch.  370. 

2  Noble  V.  Meymott,  14  Bcav.  471;  Doe  v.  Harris,  16  M.  &  W.  517. 
[  See  Jago  ;;.  Jago,  68  L.  T.  654.] 

»  Stacy  V.  Elph,  1  M.  &  K.  195-199.  [  In  re  Birchall,  40  Ch.  Div.  436.] 
*  Conyngham  v.  Conyngham,  1  Ves.  522;  Read  v.  Truelove,  Amb.  417; 
Doyle  V.  Blake,  2  Sch.  &  Lef.  231;  Stacey  v.  Elph,  1  M.  &  K.  195;  Cruger 
V.  Halliday,  11  Paige,  314;  Shepherd  v.  McEvers,  4  Johns.  Ch.  136;  Lati- 
mer V.  Hanson,  1  Bland,  51;  Jones  v.  Stockett,  2  Bland,  409;  Chaplin  v. 
Givens,  1  Rice,  Eq.  133;  Perkins  v.  McGavock,  3  Hay,  265;  Drane  v.  Gun- 
ter,  19  Ala.  731;  Strong  v.  Willis,  3  Fla.  124;  Thatcher  v.  Corder,  2  Keyes, 
157;  Armstrong  v.  Merrill,  14  Wall.  138.  [  Speakman  ».  Tatem,  48  N.  J. 
Eq.  136.] 

463 


§  269.]  DISCLAIMER    OF   THE    TRUST.  [CHAP.  IX. 

the  oflBce,  and  convey  the  estate  to  a  new  trustee,  by  the  agree- 
ment of  all  parties  in  interest,  if  they  are  competent  to  act,  and 
consent  to  the  arrangement.  But  if  the  parties  do  not  consent, 
or  if  there  are  minor  children,  married  women,  insane  persons, 
or  others  incompetent  to  act,  a  trustee,  after  he  has  once  ac- 
cepted the  office,  can  only  be  discharged  by  decree  of  a  court 
having  jurisdiction,  and  upon  proper  proceedings  had.^ 

§  269.  If  a  person  accepts  a  trust  and  dies,  his  heir  cannot 
renounce  or  disclaim  it.  The  acceptance  vested  the  estate  in 
the  trustee,  and  the  law  at  his  death  cast  it  upon  the  heir;  and 
the  heir  cannot  divest  or  repudiate  the  estate  by  a  mere  dis- 
claimer.^ (a)    But  if  the  heir  is  so  named  in  the  original  instru- 

1  Courtenay  v.  Courtenay,  Jo.  &  Lat.  519;  Foreshow  v.  Higginson,  20 
Beav.  485;  Greenwood  v.  Wakeford,  1  Beav.  576;  Coventry  f.  Coventry, 
1  Keen,  758;  Cruger  v.  Halliday,  11  Paige,  314;  Drane  v.  Gunther,  19  Ala. 
731;  Shepherd  v.  McEvers,  4  Johns.  Ch.  136;  Diefendorf  v.  Spraker,  10  N. 
Y.  246;  Re  Bernstein,  3  Redf.  (N.  Y.)  20. 

2  Co,  Litt.  9  a;  3  Cm.  Dig.  318;  Humphrey  v.  Morse,  2  Atk.  408. 

(a)  In  the  absence  of  statute  pro-  243;  St.  Stephens  Church  v.  Pierce^ 

vision  as  to  the  devolution  of  the  8  Del.  Ch.  179. 

trust  property,  on  the  death  of  a  sole  The    title   vests  in    the   heir  or 

trustee  real  estate  passes  to  the  trust-  personal  representative  only  to  pre- 

ee's  heir  and  personalty  to  his  per-  vent  the  title  from  being  in  abey- 

Bonal  representative,  subject  to  the  ance,    and   the   court    will  appoint 

trust.  Lawrence  v.  Lawrence,  181  111.  a  new  trustee    upon   the   applica- 

248;  Ewing  v.  Shannahan,  113  Mo.  tion  of  the  cestuis  or  of  the  heir  or 

188,  201 ;  State  v.  Miss.  Valley  Trust  personal    representative.      Cone    v. 

Co.,  209  Mo.  472;  Hitch  v.  Stone-  Cone,  61  S.  C.  512;  Sulhvan  v.  Lat- 

braker,    125   Mo.    128;  Kirkman  v.  imer,  35  S.  C.  422;  Lawrence  t;.  La w- 

Wadsworth,  137  N.  C.  453;  Wood-  rence,    181    111.    248;    Woodruff    v. 

ruff  V.  Woodruff,  44  N.  J.  Eq.  349;  Woodruff,  44  N.  J.  Eq.  349.     He 

Fisher   v.   Dickenson,   84   Va.   318;  has,  however,  a  duty,  similar  to  that 

Reeves  v.  Tappan,  21  S.  C.  1;  In  re  of  bailee,  of  protecting  and  caring 

Cunningham,  [1891  ]  2  Ch.  567  ;  In  for  the  property  until  he  can  turn  it 

re  Morton,  15  Ch.  D.  143.    In  South  over  to  a  person  properly  appointed. 

Carolina    and    Delaware    the    legal  Reichert  v.  Mo.  &  111.  Coal  Co.,  231 

title  of  real  estate  vests  in  the  com-  111.  238;  Ewing  v.  Shannahan,  113 

mon  law  heir  of  the  trustee,   the  Mo.  188,  201;  Burke  t;.  Maguire,  154 

oldest  son.     Cone  v.  Cone,  61  S.  C.  Cal.  456;  State  v.  Miss.  Valley  Trust 

512;  Reynolds  v.  Reynolds,  61  S.  C.  Co.,  209  Mo.  472;  In  re  Scott's  Es- 

464 


CHAP.  IX.]  DISCLAIMER    OF   THE    TRUST.  [§  270. 

ment  of  trust  that  he  takes  the  estate  by  purchase,  and  not  by 
inheritance  or  descent,  or  if  he  comes  in  under  some  arrange- 
ment, as  a  special  occupant,  he  may  use  his  own  judgment  in 
accepting  or  refusing  the  estate  charged  with  the  trust.'  In 
most  of  the  United  States  there  are  special  provisions  by  statute 
regulating  the  resignation  of  trustees,  and  the  proceedings  to 
be  had  upon  their  death,  for  the  preservation  of  the  trust  estates 
and  the  appointment  of  new  trustees.  If  a  person  is  appointed 
trustee  and  has  neither  accepted  hor  disclaimed  during  his 
life,  it  is  an  open  question  whether  his  heir  or  personal  repre- 
sentative can  disclaim  after  his  death.  The  question  was  raised 
in  Goodson  v.  Ellison,^  but  was  left  undecided.  Mr.  Hill  thinks 
that  a  disclaimer  by  the  heir  may  be  supported  on  principle.' 
A  later  case  seems  strongly  to  imply  that  the  heir  cannot  dis- 
claim.* If  an  acting  trustee  dies,  a  person  named  cotrustee 
with  him  may  disclaim  after  his  death,  if  the  one  disclaiming  has 
done  no  act  amounting  to  an  acceptance.^ 

§  270.    It  was  the  clear  opinion  of  Lord  Coke,  that  if  a  free- 
hold vested  in  a  person  by  feoffment,  grant,  or  devise,  it  could 

'  Creagh  v.  Blood,  3  Jon.  &  La.  170. 

*  Goodson  V.  Ellison,  3  Russ.  583,  587. 

3  Hill  on  Trustees,  222  (4th  ed.).     [  See  In  re  Ridley,  [1904]  2  Ch.  774.] 

*  Iving  V.  Phillips,  16  Jur.  1080. 

"  Stacey  v.  Elph,  1  M.  &  K.  195. 

tate,  202  Pa.  St.  389.     If  no  new  191.   IV  N.  Y.  Consol.  Laws  (1909), 

trustee  is  appointed  he  may  act  as  p.  3395,  §  111;  Mich.  Comp.  Laws 

trustee.      Kirkman    v.    Wadsworth,  (1897),  §  8852;     Minn.   Rev.   Laws 

137  N.C.  453;  Reynolds  y.  Reynolds,  (1905),    §3262;    Wis.  Stat.  (1898), 

618.  C.  243;  Fishery.  Dickenson,  84  §2094;     Kan.  Gen.    Stat.    (1905), 

Va.  318.  §8621;     Burns'    Ind.   Stat.    (1908), 

In  many  States  it  is  provided  by  §  4021.     The  effect  of  the  statute 

statute  that  the  trust  shall  not  de-  provision   in   Alabama  is   that  the 

volve  upon  either  the  heir  or  the  title    is    in    abeyance    between    the 

personal  representative  of  a  deceased  time  of  the  death  of  the  sole  trustee 

trustee.    Some  of  these  statutes  pro-  and  the  time  of  the  appointment  of 

vide  that  the  title  shall  vest  in  the  a  new  trustee.     Ala.   Code   (1907), 

court,  usually  until  a  new  trustee  shall  §3415;  Lecroix  «;.  Malone,  157  Ala. 

be  appointed.  Dyer  v.  Leach,  91  Cal.  434. 

VOL.  I.— 30  465 


§  270.]  DISCLAIMER    OF   THE   TRUST.  [CHAP.  IX. 

not  be  divested  except  by  matter  of  record;  and  this  rule  was 
established  in  order  that  a  suitor  might  know,  with  more  cer- 
tainty, who  was  the  tenant  to  the  prcBcipe ;  ^  but,  as  a  gift  is 
not  perfect  in  law  until  it  is  accepted  by  the  assent  of  the  donee, 
a  disclaimer  operates  as  evidence  that  the  donee  never  assented, 
and  consequently  that  the  estate  never  vested  in  him.  Accord- 
ingly, it  is  now  established  that  a  parol  disclaimer  is  suflBcient 
in  all  cases  of  a  gift  by  deed  or  will  of  both  real  and  personal 
estate.^  And  so  a  trust  may  be  repudiated  without  an  express 
disclaimer,  as  by  evidence  of  the  conduct  of  the  party  amounting 
to  a  refusal  of  the  office,^  or  by  any  conduct  inconsistent  with 
an  acceptance;  and  a  disclaimer  may  be  presumed  after  a  long 
neglect  to  qualify  or  refusal  to  act.'^  But  the  parol  expressions 
of  a  refusal  of  the  trust,  or  parol  evidence  of  conduct  incon- 
sistent with  an  acceptance,  must  be  unequivocal,  and  extend 
to  a  renunciation  of  all  interest  in  the  property ;  for  if  such  refusal 
or  conduct  is  coupled  with  a  claim  to  the  estate  of  another  char- 
acter, it  will  not  amount  to  a  disclaimer.^  But  a  person  would 
act  very  imprudently  who  allowed  so  important  a  question,  as 

1  Butler  &  Baker's  Case,  3  Co.  26  a,  27  a;  Anon.  4  Leon.  207;  Shep. 
Touch.  285,  452;  Bonifant  v.  Greenfield,  Godb.  79;  Siggers  v.  Evans,  5  El. 
&  Bl.  380. 

2  Townson  i;.  Tickell,  3  B.  &  Al.  31;  Stacey  v.  Elph,  1  M.  &  K.  198; 
Bonifant  v.  Greenfield,  Cro.  Eliz.  80;  Smith  v.  Smith,  6  B.  &  C.  112;  Begbie 
V.  Crook,  2  Bing.  N.  C.  70;  2  Scott,  128;  Shep.  Touch.  282,  452;  Smith  v. 
Wheeler,  1  Ventr.  128;  Thompson  v.  Leach,  2  Ventr.  198;  Rex  v.  Wilson, 

5  Man.  &  R.  140;  Small  v.  Marwood,4  id.  190;  Foster  t;. Dawber,  1  Dr.&  Sm. 
172  ;  Re  Ellison's  Trust,  2  Jur.  (n.  s.)  62  ;  Doe  v.  Smith,  9  D.  &  R. 
136;  Bingham  v.  Clanmorris,  2  Moll.  253;  Peppercorn  v.  Wayman,  5  De  G. 

6  Sm.  230;  Doe  v.  Harris,  16  M.  &  W.  517;  Thompson  v.  Meek,  7  Leigh, 
419;  Roseboom  j;.  Moshier,  2  Denio,  61;  Comm.  v.  Mateer,  16  Serg.  &  R. 
416;  Nicolson  v.  Wordsworth,  2  Swanst.  369;  Adams  v.  Taunton,  5  Madd. 
435;  Miles  v.  Neave,  1  Cox,  159;  Sherratt  v.  Bentley,  1  Russ.  &  M.  655; 
Norway  v.  Norway,  2  M.  &  K.  278;  Bray  v.  West,  9  Sim.  429. 

»  Stacey  v.  Elph,  1  M.  &  K.  195;  Ayres  v.  Weed,  16  Conn.  291;  Thorn- 
ton V.  Winston,  4  Leigh,  152;  Wardwell  v.  McDonell,  31  111.  364;  Williams 
V.  King,  43  Conn.  572  and  cases  cited.  [  Mutual  Life  Ins.  Co.  v.  Woods, 
4  N.  Y.  S.  133;  Brandon  v.  Carter,  119  Mo.  572.] 

*  Marr  v.  Peay,  2  Murph.  85. 

•  Doe  V.  Smith,  6  B.  &  C.  112;  Judson  v.  Gibbons,  5  Wend,  224. 

466 


CHAP.  IX.]  DISCLAIMf:K    OF   THE    TRUST.  [§  272. 

whether  he  was  a  trustee  or  not,  to  be  a  matter  of  inference 
and  construction  from  conversations  or  conduct.' 

§  271.  A  disclaimer  should  be  by  deed  or  other  writing  that 
admits  of  no  ambiguity,  and  is  certain  evidence.^  And  the 
instrument  should  be  a  disclaimer  and  not  a  conveyance  ;  for  if 
the  trustee  attempts  to  convey  the  estate,  he  may  be  held  to 
have  accepted  the  trust  by  the  same  act  which  was  intended  to 
be  a  refusal  of  the  office.^  Although  Lord  Eldon  expressed  the 
opinion,  which  seems  to  be  the  common-sense  view  that  if  the 
intention  of  the  instrument  is  to  disclaim,  it  ought  to  receive 
that  construction,  although  it  is  in  form  a  conveyance,"*  yet 
this  distinction  has  not  been  acted  on.  A  trust  may  also  be 
disclaimed  at  the  bar  of  the  court  and  by  counsel,  or  by  answer 
in  chancery.^ 

§  272.  If  a  person  is  nominated  as  trustee  in  a  will,  and  a 
benefit  is  also  given  to  him  independent  of  the  office,  he  can 
claim  the  testator's  bounty,  and  yet  disclaim  the  burden  of  the 
trust,^  as  an  executor  who  is  also  a  legatee  may  renounce  the 
executorship  and  yet  claim  the  legacy;  but  if  the  benefit  is 
annexed  to  the  office  of  trustee  or  executor,  and  is  not  a  gift 
to  the  individual,  the  person  named  as  executor  or  trustee 

•  Stacey  v.  Elph,  1  M.  &  K.  199;  In  re  Tryon,  7  Beav.  496. 

^  Stacey  t;.  Elph,  1  M.  &  K.  199.    [  See  Avery  v.  Avery,  90  Ky.  613.] 
»  Crewe  v.  Dicken,  4  Ves.  97;  Urch  v.  Walker,  3  M.  &  C.  702. 

•  Nicolson  V.  Wordsworth,  2  Swanst.  372;  Att.  Gen.  r.  Doyley,  2  Eq. 
Cas.  Ab.  194;  Hussey  v.  Markham,  t.  Finch,  258;  Sharp  t;.  Sharp,  2  B.  & 
A.  405;  Richardson  v.  Hulbert,  1  Anst.  65. 

»  Ladbrook  v.  Bleaden,  16  Jur.  630;  Foster  v.  Dawber,  1  Dr.  &  Sm.  172-, 
Re  Ellison's  Trust,  2  Jur.  (n.  .8.)  62;  Hickson  v.  Fitzgerald,  1  Moll.  14; 
Norway  v.  Norway,  2  M.  &  K.  278;  Sherratt  v.  Bentley,  1  R.  &  M.  655; 
Legg  f.^Mackrell,  1  Gif.  166;  Bray  v.  West,  9  Sim.  429;  Clemens  v.  Clemens, 
60  Barb.  366. 

•  Pollexfen  t;.  Moore,  3  Atk.  272;  Andrew  v.  Trinity  Hall,  9  Ves.  525; 
Talbot  V.  Radnor,  3  M.  &  K.  524;  Warren  v.  Rudall,  1  John.  <fe  H.  1;  Buel 
V.  Yelverton,  L.  R.  13  Eq.  131;  In  re  Isabella  Denby,  3  De  G.,  F.  &  J.  350; 
Burgess  v.  Burgess,  1  Coll.  367. 

467 


§  273.]  EFFECT    OF    A    DISCLAIMER.  [CHAP.  IX. 

cannot  claim  the  benefit  if  he  decline  the  office.^  And  a  trustee 
who  has  power,  under  certain  circumstances,  to  appoint  a  col- 
league and  successor  to  execute  the  trusts,  may  disclaim  the 
trusts,  except  the  power  of  nominating  other  persons  to  be 
trustees  in  place  of  those  originally  appointed,  and  an  appoint- 
ment by  one  who  has  never  acted  except  to  make  the  nomina- 
tion will  be  held  valid.^ 

§  273.  If  a  person  appointed  trustee  effectually  disclaims, 
it  is  as  if  he  had  never  been  named  in  the  instrument.  All 
parties  are  placed  in  the  same  situation  in  respect  to  the  trust 
property  as  if  his  name  had  not  been  inserted  in  the  deed  or 
will.^  Therefore,  if  one  of  the  several  trustees  disclaims,  the 
entire  estate  will  vest  in  the  remaining  trustee  or  trustees;* 
and  if  all  the  trustees  or  a  sole  trustee  disclaim,  the  estate 

1  It  is  an  established  rule  that  bequests  to  individuals  are  considered, 
prima  facie,  to  be  given  to  them  in  that  character,  —  a  presumption  to  be 
repelled  by  the  nature  of  the  legacies  or  other  circumstances  arising  in  the 
will.  Roper  on  Leg.  780;  Slaney  v.  Watney,  L.  R.  2  Eq.  418.  It  is  so,  even 
if  the  persons  are  described  in  the  legacy  as  "my  good  friends."  Read  v. 
Devajmes,  3  Bro.  Ch.  95.  Or  if  the  legacy  is  given  in  the  will  among  other 
legacies.  Calvert  v.  Sebhon,  4  Beav.  222.  Or  if  it  is  given  in  a  codicil  naming 
the  person  as  an  individual  and  not  naming  his  office.  Stackpole  v.  Howell, 
13  Ves.  417;  per  Ch.  J.  Chapman  in  Kirkland  v.  Narramore,  105  Mass.  31. 
And  see  Lewis  v.  Matthews,  L.  R.  8  Eq.  277;  Abbott  v.  Massie,  3  Ves.  148; 
Harrison  v.  Rowley,  4  Ves.  212;  Cockerill  v.  Barber,  1  Sim.  23;  5  Russ.  585; 
Barnes  v.  Kirkland,  8  Gray,  512;  Rothmaler  v.  Myers,  4  Des.  255;  Dix 
V.  Read,  1  S.  &  S.  237;  Piggott  i;.  Green,  6  Sim.  72;  Billingslea  v.  Moore,  14 
Ga.  370;  Hall  v.  Gushing,  9  Pick.  395;  Newcomb  t^.  Williams,  9  Met.  525; 
Dixon  V.  Homer,  id.  420;  Brygdes  v.  Wotton,  1  V.  &  B.  134;  Morris  v.  Kent, 
2  Ed.  Ch.  175;  In  re  Hawken's  Trust,  33  Beav.  570;  Hanbury  v.  Spooner,  5 
Beav.  630;  Griffiths  v.  Pruen,  11  Sim.  202;  King  v.  Woodhull,  3  Edw.  Ch. 
79;  Brown  v.  Higgs,  4  Ves.  708;  Thayer  v.  Wellington,  9  Allen,  283,  295; 
Cranberry  v.  Cranberry,  1  Wash.  246. 

2  In  re  Hadley,  5  De  G.  &  Sm.  67;  9  Eng.  L.  &  Eq.  67. 

'  Townson  v.  Tickell,  3  B.  &  Al.  31;  Begbie  v.  Crook,  2  Bing.  N.  C. 
70;  Clemens  v.  Clemens,  60  Barb.  366;  Hawkins  v.  Kemp,  3  East,  410; 
Smith  V.  Wheeler,  1  Ventr.  128;  Legett  v.  Hunter,  25  Barb.  81;  19  N.  Y. 
445;  Goss  v.  Singleton,  2  Head,  67.    [  Parkhill  v.  Doggett,  135  Iowa,  113.] 

*  Ibid.;  Bonifant  v.  Greenfield,  Cro.  Eliz.  80;  Denne  v.  Judge,  11  East, 
288;  Ellis  v.  Boston,  Hartford,  &  Erie  R.  Co.,  107  Mass.  13.     [  Wheeler's 
Appeal,  70  Conn.  511.] 
468 


CHAP.  IX.]  EFFECT    OF    A    DISCLAIMER.  [§  273. 

will  vest  in  the  heir  subject  to  the  trusts.'  The  settlor  must  be 
presumed  to  have  known  the  effect  of  a  disclaimer  by  the  trus- 
tees named  by  him.^  It  will  be  seen  from  this,  that  a  disclaimer 
operates  retrospectively,  and  vests  the  estate,  ab  initio,  in 
those  trustees  only  who  accept  the  trust,  and,  in  the  absence 
of  an  acceptance  by  any  of  the  trustees,  in  the  heir.^  It  fol- 
lows, that  all  the  powers  and  authority  vested  in  the  trustees, 
as  such,  which  are  incidental  or  requisite  to  the  execution  of 
the  trusts,  are  vested  in  those  trustees  only  who  accept  the 
office,  (a)  They  may,  therefore,  grant  leases  of  the  trust  estate,* 
and  sell  and  convey  the  same,^  and  give  valid  receipts  for  the 
purchase-money,^  and  the  disclaiming  trustee  need  not  join  in 
the  deeds,  nor  can  his  concurrence  be  required  or  enforced. 
But  it  must  be  known  whether  one  of  several  trustees  disclaims 
or  accepts  before  it  can  be  known  whether  the  acts  of  the  others 
are  valid  or  not.^  And  it  is  immaterial  that  a  disclaiming  trus- 
tee is  expressly  named  as  one  of  the  persons  by  whom  a  power 
connected  with  the  trust  is  to  be  exercised:^  a  power  given  to 
the  trustees,  or  the  survivor  of  them,  may  be  exercised  by  an 
acting  trustee,  although  the  disclaiming  trustee  is  still  alive.^ 
But  if  the  power  is  given  to  the  person  and  not  to  the  office,  a 

1  Stacey  v.  Elph,  1  M.  &  K.  195;  Austin  v.  Martin,  29  Beav.  523;  Goss 
V.  Singleton,  2  Head,  67.    In  New  York  it  rests  in  the  court  by  statute. 

2  Browell  v.  Reed,  1  Hare,  435. 

'  Peppercorn  v.  Wayman,  5  De  G.  &  Sm.  230;  Stacey  v.  Elph,  1  M.  & 
K.  195;  Dunning  v.  Ocean  Nat.  Bk.,  6  Lans.  296. 

*  Small  V.  Marwood,  9  B.  &  Cr.  307;  Bayly  v.  Gumming,  10  Ir.  Eq.  410. 

*  Cooke  V.  Craw'ford,  13  Sim.  91;  Adams  v.  Taunton,  5  Madd.  435; 
Crewe  v.  Dicken,  4  Ves.  97;  Nicolson  v.  Wordsworth,  2  Swanst.  378. 

«  Hawkins  v.  Kemp,  3  East,  410;  Smith  v.  Wheeler,  1  Vcntr.  128;  2  Ven. 
&  Pur.  850;  Vandever's  App.,  8  Watts  &  S.  405. 

">  Moir  V.  Brown,  14  Barb.  39.     [  Coleman  v.  Connolly,  242  111.  574.] 

'  Crewe  v.  Dicken,  4  Ves.  100;  Adams  v.  Taunton,  5  Madd.  435. 

'  Sharp  V.  Sharp,  2  B.  &  Cr.  405;  Peppercorn  v.  Wayman,  5  De  G. 
&  Sm.  230. 

(a)  La  Forge  v.  Binns,  125  111.  vided  by  statute.  Md.  Public  Gen. 
App.  527;  Mullanny  v.  Nangle,  212  Laws  (1904),  Art.  93,  §§  293-295. 
111.  247.    This  is  often  expressly  pro- 

469 


§  274.]  REMOVAL    OR    RESIGNATION.  [CHAP.  IX.. 

disclaimer  by  one  will  not  vest  the  power  in  the  other  trustees,, 
so  as  to  enable  them  to  exercise  it.  Powers  that  imply  a  per- 
sonal confidence  in  the  donee  must  be  exercised  by  the  persons 
in  whom  the  confidence  is  placed,  and  to  whom  the  power  is 
given.^  Such  powers,  therefore,  will  not  vest  by  the  disclaimer 
of  one  in  his  cotrustees,  but  will  be  absolutely  gone.^  (a) 

§  274.  If  a  trustee  once  accepts  the  office,  he  cannot  by  his 
sole  action  be  discharged  from  its  duties.  Having  once  entered 
upon  the  management  of  the  trust,  he  must  continue  to  per- 
form its  duties  until  he  is  discharged  in  one  of  three  ways: 
first,  he  may  be  removed  and  discharged,  and  a  new  trustee 
substituted  in  his  place,  by  proceedings  before  a  court  having 
jurisdiction  over  the  trust;  second,  he  may  be  discharged, 
and  a  new  trustee  appointed,  by  the  agreement  and  concur- 
rence of  all  the  parties  interested  in  the  trust;  and,  third,  he 
may  be  discharged,  and  a  new  trustee  appointed,  in  the 
manner  pointed  out  in  the  instrument  creating  the  trust,  if  it 
makes  any  provisions  upon  that  subject.^  Mere  abandon- 
ment of  the  trust  will  not  vest  the  trust  property  in  the 
hands  of  his  cotrustee,  nor  relieve  a  trustee  from  liability.*    If 

'  Cole  V.  Wade,  16  Ves.  44;  Newman  v.  Warner,  1  Sim.  (n.  s.)  457; 
Eaton  V.  Smith,  2  Beav.  236;  Att.  Gen.  v.  Doyley,  2  Eq.  Cas.  Ab.  194; 
Walsh  V.  Gladstone,  14  Sim.  2;  Wilson  v.  Pennock,  27  Pa.  St.  238. 

*  Eaton  V.  Smith,  2  Beav.  236;  Lancashire  v.  Lancashire,  2  Phill.  657; 
Robson  V.  Flight,  33  Beav.  268. 

»  Craig  V.  Craig,  3  Barb.  Ch.  76;  Drane  v.  Gunter,  19  Ala.  731;  Thatcher 
V.  Candee,  3  Keyes  (N  Y.),  157;  Shepherd  v.  McEvers,  4  Johns.  Ch.  186; 
Cruger  v.  Halliday,  11  Paige,  319;  Ridgeley  t;.  Johnson,  11  Barb.  527;  Web- 
ster V.  Vandeventer,  6  Gray,  428;  Pearce  v.  Pearce,  22  Beav.  248;  Sugden 
V.  Crossland,  3  Sm.  &  Gif.  192;  Jones  v.  Stockett,  2  Bland,  409;  Perkins  v. 
McGavock,  3  Hay.  265.  [  Steams  v.  Fraleigh,  39  Fla.  603,  610;  Jenkins 
V.  Hammerschlag,  56  N.  Y.  S.  534  (a  trustee  for  creditors).] 

*  Webster  v.  Vandeventer,  6  Gray,  428;  Cruger  i;.  Halliday,  11  Paige, 
314;  Thatcher  v.  Candee,  3  Keyes,  157. 

(a)  As  to  the  vesting  of  powers  moval  or  resignation  of  one  or  more 
in  the  surviving  or  continuing  trus-  of  several  cotrufltees,  see  infra,  §  498. 
tee  upon  the  death,  disclaimer,  re- 

470 


CHAP.  rX.]       FOR    WHAT    CAUSES    MAY    BE    REMOVED.  [§  275. 

a  trustee  conveys  away  the  trust  estate  to  another,  even  his 
cotrustee,  and  appoints  another  to  execute  the  trust,  the  con- 
veyance may  pass  the  naked  legal  title,  but  it  will  have  no 
effect  in  relieving  the  original  trustee  from  responsibility,  if  the 
transaction  is  not  sanctioned  by  the  decree  of  the  court,  or  by  the 
consent  of  all  parties  interested;  and  it  will  transfer  no  authority 
to  the  person  thus  appointed,  except  to  make  him  a  trustee  de 
son  tort,  if  he  attempts  to  interfere  with  the  trust  estate.^ 

§  275.  The  cestui  que  trust,  and  all  other  persons,  although 
contingently  interested  in  the  remainder  or  reversion  of  trust 
property,"  are  entitled  to  have  the  custody  and  the  adminis- 
tration of  it  confided  to  proper  persons,  and  to  a  proper  number 
of  persons.  Thus  if  a  trustee  originally  appointed  by  will  die 
in  the  testator's  lifetime,  a  new  trustee  may  be  appointed  by  the 
court  to  take  the  trust  property;  or  if  the  original  number  of 
trustees  is  reduced  by  death,  the  cestui  que  trust  may  call  upon 
the  court  to  appoint  new  trustees  in  place  of  those  deceased.' 
So  if  a  trustee  disclaims,  or  refuses  to  act  after  having  once  ac- 
cepted,* or  becomes  so  situated  that  he  cannot  effectually  exe- 
cute the  office,  as  by  becoming  a  permanent  resident  abroad,^  (a) 

1  Poarce  v.  Pearce,  22  Beav.  248;  Sugden  v.  Crossland,  3  Sm.  &  Gif. 
192;  Braybrooke  v.  Inskip,  8  Ves.  417;  Chalmers  v.  Bradley,  1  J.  &  W. 
68;  Williams  v.  Parry,  4  Rues.  272;  Adams  v.  Paynter,  1  Coll.  532;  Cruger 
V.  Halliday,  11  Paige,  314;  Ardill  v.  Savage,  1  Ir.  Eq.  79.  [  Spenglerr.  Kuhn, 
212  111.  186.] 

2  Finlay  i-.  Howard,  2  Dr.  &  W.  490;  Cooper  v.  Day,  1  Rich.  Eq.  26; 
In  re  Sheppard's  Trusts,  4  De  G.,  F.  «fe  J.  423;  Rennie  t;.  Ritchie,  12  CI. 
&  Fin.  204. 

'  Buchanan  v.  Hamilton,  5  Ves.  722;  Hibbard  v.  Lamb,  Amb.  309; 
Webb  t^.Shaftesbury,  7  Ves.  487;  Millard  v.  Eyre,  2  Ves.  Jr.  94;  De  Peyster  v. 
Clendining,  8  Paige,  296;  Dixon  r.  Homer,  12  Cush.  41;  Mass.  Gen.  Hos. 
V.  Amory,  12  Pick.  445;  Greene  v.  Borland,  4  Met.  339.  [  But  see  Mullanny 
V.  Nangle,  212  111.  247;  La  Forge  v.  Binns,  125  111.  App.  527.  See  infra, 
§  286.] 

*  Wood  V.  Stane,  8  Price,  613;  Moggeridge  v.  Grey,  Nels.  42;  Anon.  4 
Ir.  Eq.  700;  Travell  v.  Danvers,  Finch,  380;  Irvine  v.  Dunham,  111  U.  S.  327. 

"  O'Reilly  v.  Alderson,  8  Hare,  101;  Re  Ledwick,  6  Ir.  Eq.  561;  Com., 

(a)  Removal  from  the  State  does  incapable  of  acting  as  such.  Bonner 
not  ipso /acto  render  a  trustee  legally     v.  Lessley,  61  Miss.  392. 

471 


§  275.]  FOR    WHAT    CAUSES    MAY    BE    REMOVED.     [CHAP.  IX. 

or  by  absconding;^  or  if  a,  female  trustee  marry  ;^  or  if  the  trustees 
of  a  church  or  chapel  embrace  opinions  contrary  to  the  founder's 
intentions;'  or  if  the  trustee  becomes  bankrupt/  or  misconducts 
himself,^  or  deals  with  the  trust  fund  for  his  own  personal  profit 
and  advancement/  or  commits  a  breach  of  trusts^  or  refuses 


&c.,  V.  Archbold,  11  Ir.  Eq.  Ig?;  Lill  v.  Neafie,  31  lU.  101;  In  re  Reynolds' 
Settlement,  L.  R.  7  Ch.  224;  Maxwell  v.  Finnie,  6  Cold.  434;  Curtis  v. 
Smith,  60  Barb.  9;  Mennard  v.  Wilford,  1  Sm.  &  Gif.  426;  Re  Stewart,  8 
W.  R.  297;  Re  Harrison's  Trusts,  22  L.  J.  Ch.  69;  Dorsey  v.  Thompson, 
37  Md.  25;  Ketchum  v.  Mobile  &  Ohio  R.  R.,  2  Woods,  532.  [  See  Ames' 
Cases  on  Trusts,  (2d  ed.)  249,  n.]  The  voluntary  removal  to,  and  becom- 
ing a  resident  of,  a  foreign  country  by  a  trustee  under  a  mortgage  by  a 
railroad  company,  incapacitates  him  and  vacates  the  office;  and  if,  after 
such  removal,  he  attempts  to  prosecute  suit  in  federal  court  the  state  court 
will  enjoin  him.  Farmers'  Loan  and  Trust  Co.  v.  Hughes,  11  Hun  (N.  Y.), 
130.  And  where  the  cestui  que  trust  was  prohibited  by  law  from  coming 
into  the  State,  the  court,  on  the  trustee's  petition,  discharged  him,  and 
appointed  one  living  in  the  same  State  with  the  cestui  qu^  trust.  Ex  parte 
Tunno,  1  Bailey,  Ch.  395. 

1  Millard  v.  Eyre,  2  Ves.  Jr.  94;  Gale's  Peti.  R.  M.  Charlt.  109;  Re 
Mais,  16  Jur.  608. 

2  Lake  v.  De  Lambert,  4  Ves.  592;  Re  Kaye,  L.  R.  1  Ch.  387.  By  chap. 
409  of  the  Acts  of  1869,  a  married  woman  in  Massachusetts  may  be  ap- 
pointed executrix,  adminstratrix,  guardian,  or  trustee,  with  the  written 
assent  of  her  husband ;  and  the  marriage  of  a  single  woman  who  holds  such 
trusts  shall  not  extinguish  her  authority,  but  her  sureties  on  petition  may 
be  discharged,  and  she  may  be  required  to  give  new  ones.  [  The  assent 
of  her  husband  is  no  longer  necessary.  R.  L.  (1902)  c.  153,  §  5.  See  also 
statutes  of  other  States,  removing  the  disabilities  of  married  women.] 

3  Att.  Gen.  v.  Pearson,  7  Sim.  309;  Att.  Gen.  v.  Shore,  id.  317;  Rose  v. 
Crockett,  14  La.  An.  811.  If  individuals  pay  their  own  money,  and  take 
a  deed  to  themselves  in  trust  for  a  parish,  the  courts  will  not  appoint  a 
trustee  to  fill  a  vacancy;  but  if  the  parish  paid  the  money,  the  court  will 
appoint.    Draper  v.  Minor,  36  Mo.  290. 

*  Bainbrigge  v.  Blair,  1  Beav.  495;  In  re  Roche,  1  Con.  &  Laws.  306; 
Com.,  &c.,  V.  Archbold,  11  Ir.  Eq.  187;  Harris  v.  Harris,  29  Beav.  107;  Re 
Bridgman,  1  Dr.  &  Sm.  164. 

^  Mayor  of  Coventry  v.  Att.  Gen.,  7  Bro.  P.  C.  235;  Buckeridge  v.  Glasse, 
1  Cr.  &  Ph.  122;  Thompson  v.  Thompson,  2  B.  Mon.  161;  Deen  v.  Cozzens, 
7  Rob.  178. 

«  Ex  parte  Phelps,  9  Mod.  357;  Clemens  v.  Caldwell,  7  B.  Mon.  171; 
Deen  v.  Cozzens,  7  Rob.  178;  Kraft  v.  Lohman,  79  Ala.  323.  [  Gregg  t;. 
Gabbert,  62  Ark.  602.] 

^  Thompson  v.  Thompson,  2  B.  Mon.  161;  Mayor  of  Coventry  v.  Att. 

472 


CHAP.  IX. J       FOR    WHAT    CAUSES    MAY    BE    REMOVED.  [§  275. 

to  apply  and  pay  over  the  income  as  directed/  or  if  he  fails 
to  invest  as  directed,^  or  permits  a  cotrustee  to  commit  a  breach 
of  trust,^  or  if  he  loans  the  trust  funds  on  personal  security, 
although  the  cestui  que  trust  approves  of  it,^  or  refuses  to  obey 
an  order  of  the  court ,^  or  if  trustees  of  a  mortgage  for  the  secur- 
ity of  bond-holders  of  a  railroad  or  other  corporation  refuse  to 
foreclose  or  take  other  steps;®  or  if  a  trustee  makes  a  grossly 
unreasonable  claim  upon  the  trust  property  adverse  to  the 
cestui  que  trust;  ^  or  if  a  husband,  trustee  for  his  wife,  abandons 
and  deserts  her  or  treats  her  with  cruelty;^  or  if  a  municipal 
corporation,  holding  property  upon  special  trusts,  is  abolished; ' 
or  if  a  trustee  becomes  an  habitual  drunkard;  ^^  or  a  lunatic;  " 
or  if  a  hostile  feeling  exists  between  a  discretionary  trustee 
and  the  cestui,^^  or  the  trustee  is  antagonized  by  litigation,^^  or 
the  trustee  acts  adversely  to  the  interests  of  the  cestui,^*  or  if  the 

Gen.,  7  Bro.  P.  C.  235;  Att.  Gen.  v.  Drummond,  1  Dr.  &  W.  353;  3  Dr.  & 
W.  162;  Att.  Gen.  v.  Shore,  7  Sim.  309,  n.;  Ex  parte  Greenhouse,  1  Madd.  92. 
>  Ex  parte  Potts,  1  Ash.  340.    [  In  re  McGillivray,  138  N.  Y.  308;  Wilcox 
V.  Quinby,  16  N.  Y.  S.  699.] 

*  Clemens  v.  Caldwell,  7  B.  Mon.  171;  Deen  v.  Cozzens,  7  Rob.  N.  Y. 
178;  Cavender  v.  Cavender,  114  U.  S.  464. 

*  Ex  parte  Reynolds,  5  Ves.  707. 

*  Johnson  v.  Simpson,  9  Barr,  416. 

«  Ehlen  v.  Ehlen,  63  Md.  267.  [  Harrison  v.  Union  Trust  Co.,  144 
N.  Y.  326.] 

«  Matter  of  Merchants'  Bank,  2  Barb.  S.  C.  446. 

^  Cooper  V.  Day,  1  Rich.  Ch.  26. 

«  Boaz  V.  Boaz,  36  Ala.  334;  Fisk  v.  Stubbs,  30  Ala.  355;  Smith  v.  Oliver, 
31  Ala.  139;  .\bemathy  v.  Abemathy,  8  Fla.  243.  But  if  the  wife  deserts  the 
husband  without  cause,  though  the  husband  may  be  at  some  fault,  it  is  no 
cause  for  removing  him  as  her  trustee.  Abemathy  r.  Abemathy,  8  Fla.  243. 

»  Montpelier  v.  East  Montpolier,  29  Vt.  12. 

»o  Everett  v.  Prythergch,  12  Sim.  367;  Bayles  v.  Staats,  1  Halst.  Ch. 
513. 

"  Matter  of  Wadsworth,  2  Barb.  Ch.  387;  Re  Fowler,  2  Russ.  449;  Anon., 
5  Sim.  322;  In  re  Holland,  16  Ch.  D.  672;  In  re  Nash,  16  Ch.  D.  503;  In 
re  Watson,  19  Ch.  D.  384;  In  re  Martyn,  26  Ch.  D.  745.  [  Bascom  v.  Weed, 
105  N.  Y.  S.  459.] 

"  Wilson  V.  Wilson,  145  Mass.  490,  494.    [  See  infra,  §  276,  notes.] 

"  Davidson  v.  Moore,  14  S.  C.  251. 

"  Dickerson  v.  Smith,  17  S.  C.  289. 

473 


§  275.]  FOR   WHAT    CAUSES   MAY    BE    REMOVED,       [CHAP.  IX, 

trustee,  appointed  on  an  ex  parte  application  of  one  of  the 
cestuis,  is  his  paid  servant/  or  if  there  is  any  other  good  cause,^ 
as  if  the  trust  fund  is  in  danger  of  being  lost  for  want  of  care 
and  attention  by  the  trustee,'  or  if  in  any  way  the  trustee  has 
become  incapable  of  performing  the  duties  of  the  trust,"*  or  his 
acts  or  omissions  show  a  want  of  reasonable  fidelity  to  the 
trust,^  —  in  all  these  and  similar  cases  the  old  trustees  may  be 
removed,  and  new  ones  substituted  in  their  room,  (a)     The 

>  Mayfield  v.  Donovan,  17  Mo.  App.  684. 

*  Piper's  App.,  20  Penn.  St.  67;  Franklin  v.  Hayes,  2  Swanst.  521. 

'  Jones  V.  Dougherty,  10  Ga.  273;  Harper  v.  Straws,  14  B.  Mon.  57; 
Holcomb  V.  Coryell,  1  Beas.  289;  Lasley  v.  Lalsey,  1  Duv.  117;  and  see 
Commissioners  v.  Archibald,  11  Ir.  Eq.  195;  where  L.  Ch.  Brady  ably  dis- 
cusses the  removal  of  trustees.  In  re  Bernstein,  3  Redf.  (N.  Y.)  20.  Or 
if  a  trustee  identifies  himself  with  one  of  two  contending  parties  in  relation 
to  the  trust  fund.  Scott  v.  Rand  ei  al.,  118  Mass.  215.  Or  is  so  hostile  to 
his  cotrustees  as  to  endanger  the  execution  of  the  trust.  Devasmer  v.  Dun- 
ham, 22  Hun  (N.  Y.),  87.  Or  is  guilty  of  gross  misconduct  in  execution  of 
a  discretionary  trust.  Babbit  v.  Babbit,  26  N.  J.  Eq.  44;  Sparhawk  v.  Spar- 
hawk,  114  Mass.  356.  *  Austin  v.  Austin,  18  Neb.  309. 

*  Ca vender  v.  Ca vender,  114  U.  S.  464.  [  Lanning  v.  Commissioners,  6S 
N.  J.  Eq.  1.] 

(a)  Other  sufficient  causes  for  (affirmed  188  N.  Y.  584).  But  re- 
removal  are,  wasting  the  estate  in  moval  has  also  been  refused  by  the 
unnecessary  litigation.  In  re  McGil-  court  when  this  was  the  only 
livray,  138  N.  Y.  308;  threatening  ground.  Dailey  v.  Wight,  94  Md. 
the  cestuis  with  disclosures  injurious  269;  Matter  of  Warren,  109  N.  Y.  S. 
to  their  interests  if  they  take  pro-  202,  125  App.  Div.  169.  Inevitable 
ceedings  against  him.  Grant  v.  conflict  between  the  interest  of  the 
Maclaren,  23  Can.  Sup.  310.  trust  and  of  the  trustee  as  an  indi- 

A  trustee's  acceptance  of  asalaried  vidual  is  in  general  a  good  cause  for 

elective  office  in  a  corporation  some  of  removal.  Moore  t;.  McGlynn,  (1894) 

whose  stock  constitutes  part  of  the  1  Ir.  R.  74.     If  circumstances  give 

trust  estate  has  been  held  a  good  rise  to  conflict  of  interests  between 

ground  for  removal  because  of  the  the  parts  of  trust  property  held  on 

possible    conflict   of   his   individual  distinct  trusts,  the  English  courts, 

interest  to  retain  the  stock  when  the  under  the  Trustee  Act  of  1850,  §  32, 

interest  of  the  trust  might  require  would  not  necessarily  deem  it  ex- 

the  sale  of  it.    Gartside  v.  Gartside,  pedient  to  remove  the  trustees,  but 

113  Mo.  348;  Elias  v.  Schweyer,  40  might  appoint  separate  trustees.   In 

N.  Y.  S.  906.     See  also  Matter  of  re  Aston's  Trusts,  25  L.  R.  Ir.  96. 

Hirsch,  116  App.  Div.  (N.  Y.)  367  See  also  Trustee  Act,  1893,  §  10. 

474 


CHAP.  IX.]       FOR    WHAT   CAUSES    MAY    BE    REMOVED.  [§  270. 

matter  rests  in  the  sound  discretion  of  the  court. ^  And  in  a 
suit  for  the  purpose,  it  will  not  be  impertinent  nor  scandalous 
to  charge  the  trustee  with  misconduct,  or  to  impute  to  him  a 
corrupt  or  improper  motive,  or  to  allege  that  his  behavior  is 
vindictive  towards  the  cestui  que  trust;  but  it  will  be  impertinent, 
and  may  be  scandalous,  to  charge  general  malice  or  general 
personal  hostility.-  If  the  court  have  jurisdiction  of  the  subject- 
matter,  mere  irregularity  in  the  proceedings  or  in  the  appoint- 
ment will  not  make  it  void  in  a  collateral  proceeding,  nor  can 
the  regularity  of  the  proceedings  or  of  the  appointment  be  in- 
quired into  in  a  collateral  suit;  such  appointment  must  stand 
until  it  is  reversed  by  a  proceeding  for  the  purpose  in  the  same 
case.'  In  case  of  a  trust  for  creditors,  the  court  will  not  at  the 
instance  of  some  of  them  remove  the  assignee,  unless  he  is  in 
default,  or  is  show^n  to  be  unfit  for  his  office.'*  Equity  will  not 
exercise  its  power  to  take  charge  of  and  administer  a  trust  when 
it  is  being  properly  administered  by  the  trustee.^  (a) 

§  276.  It  may  be  stated  generally,  that  if  the  conduct  or 
circumstances  of  the  trustees  are  such  as  to  render  it  very  in- 
convenient, improper,  or  inexpedient  for  them  to  continue  in 
the  trust  the  court  will  exercise  its  discretion  and  relieve  them, 
and  appoint  others  in  their  place;  as  where  the  trustees  were 
desirous  of  being  discharged,®  or  were  incapable  through  age 

'  Ibid.,  citing  many  cases.  [  Lamp  v.  Homestead  Building  Ass'n,  62 
W.  Va.  56;  Gaston  v.  Hayden,  98  Mo.  App.  683.] 

*  Portsmouth  v.  Fellows,  5  Madd.  450;  Parsons  v.  Jones,  26  Ga.  644. 

'  Budd  V.  Hiler,  3  Dutch,  43;  People  v.  Norton,  5  Selden,  176;  Paulea 
«;.  Dilley,  9  Gill,  222;  Curtis  v.  Smith,  60  Barb.  9;  Howard  v.  Waters,  19 
How.  529;  Hodgdon  v.  Shannon,  44  N.  H.  572.  [Dyer  v.  Leach,  91  Cal. 
191;  Reichert  v.  Mo.  &  111.  Coal  Co.,  231  111.  238.] 

<  Jones  V.  McPhillips,  77  Ala.  314.    [  Infra,  §  594,  notes.] 

»  Meyers  v.  Trustees  of  Schools,  21  111.  App.  223. 

«  Bogle  V.  Bogle,  3  Allen,  158;  Howard  v.  Rhodes,  1  Keen,  581;  Cov- 

(a)  A  court  having  jurisdiction  of  under  a  will  which  was  never  proved 

the  parties  will  not  decline  to  remove  in  the  State  where  his  removal  is 

a  trustee  for  cause,  merely  because  sought.    Jones  i-.  Jones,  30  N.  Y.  S. 

he  was  appointed  in  another  State  177. 

475 


§  276.]  FOR   WHAT    CAUSES   MAY    BE    REMOVED.       [CHAP.  IX. 

and  infirmity  of  acting,*  or  so  disagreed  among  themselves 
that  they  could  not  act,^  or  where  cotrustees  refused  to  act  with 
one  of  their  number,^  or  where  the  trustees  appointed  were 
municipal  officers  for  the  time  being  and  are  changed  yearly,* 
or  where  a  corporation  appointed  trustee  had  become  subject 
to  a  foreign  power,^  —  in  these  and  the  like  cases  the  courts 
interposed  and  appointed  other  trustees.  But  if  there  is  a 
controversy,  the  court  will  exercise  a  sound  discretion.  Mere 
disagreements  between  the  trustee  and  cestui  que  trust  will  not 
justify  a  removal;^  (a)  nor  the  fact  that  the  trustee  forbids 

entry  v  Coventry,  id.  758;  Greenwood  v.  Wakeford,  1  Beav.  576;  Hamil- 
ton V.  Frye,  2  Moll.  458. 

^  Gardiner  v.  Downes,  22  Beav.  395;  Bennett  v.  Honywood,  Amb.  710. 

*  Bagot  V.  Bagot,  32  Beav.  509;  Uvedale  v.  Patrick,  2  Ch.  Gas.  20. 
»  Uvedale  v.  Patrick,  2  Ch.  Gas.  20. 

*  Ex  parte  Blackbume,  1  J.  &  W.  297;  Webb  v.  Neal,  5  Allen,  575. 

*  Att.  Gen.  v.  London,  3  Bro.  Ch.  171. 

«  Clemens  v.  Caldwell,  7  B.  Mon.  171;  Gibbes  v.  Smith,  2  Rich.  Eq. 
131 ;  Foster  v.  Davies,  4  De  G.,  F.  &  J.  133;  Unless  the  duties  of  the  trustee 
require  an  intimate  personal  intercourse,  or  the  trustee  has  discretionary 
power  over  the  cestui  que  trust.    McPherson  v.  Cox,  96  U.  S.  404. 

(a)  In   case   of  hostile   relations  den's  Estate,  166  Pa.  St.  213;  Na- 

between  the  trustee  and  a  cestui  the  thans's    Estate,    191   Pa.    St.    404; 

action  of  the  court  as  to  removal  Neafie's  Estate,    199   Pa.   St.   307; 

will  be  guided  chiefly  by  consider-  Lister  v.  Weeks,  60  N.  J.  Eq.  215, 

ation  of  what  is  best  for  the  trust.  228;  Disbrow  v.  Disbrow,  61  N.  Y. 

The  cause  of  disagreement  is  usually  S.  614,  46  App.  Div.  Ill  (affirmed 

of   minor   importance.      While    the  167  N.  Y.  606);  and  cases  cited  in/ra. 

mere  fact  of  hostility,  even  when  it  Although  the  cestui  should  not  be 

is  irreconcilable  and  makes  all  inter-  permitted  to  procure  the  removal  of 

course  impossible,  may  not  be  suffi-  a  competent  trustee  by  picking  a 

cient  cause  for  removal,  if  it  seriously  quarrel  with  him,  "'It  must  always 

interferes  with  the  proper  perform-  be  borne  in  mind  that  trustees  ex- 

ance  of  the  trust  and  the  beneficial  ist  for  the  benefit  of  those  to  whom 

enjoyment  of  the  cestui,  the  trustee  the  creator  of  the  trust  has  given  the 

should  be  removed,  although  not  at  trust  estate,"   and  if  the  hostility 

fault  in  the  matter.     Polk  v.  Lin-  interferes    substantially    with    this 

thicum,  100  Md.  615;  Anderson  v.  purpose,    viz.,    the    welfare    of    the 

Kemper,  116  Ky.  339;  Gartside  v.  beneficiaries,  this  in  itself  is  a  proper 

Gartside,  113  Mo.  348,  356;  Gaston  cause  for  removal.     Letterstedt  v. 

V.  Hayden,  98  Mo.  App.  683;  Trask  Broers,  9  A.  C.  371,  386. 

V,  Sturges,  63  N.  Y.  S.  1084;  Mars-  In  May  v.  May,  167  U.  S.  310, 

476 


CHAP.  IX.]       FOR    WHAT    CAUSES   MAY    BE    REMOVED.  (§  276. 

social  intercourse  between  his  family  and  the  beneficiaries,'  and  if 
a  trustee  fails  in  the  disharge  of  his  duties  from  an  honest  mis- 
take, or  mere  misunderstanding  of  them,  or  from  a  misjudg- 
ment,  it  is  no  ground  for  removal ;  ''■  and  if  a  trustee  in  good 
faith  refuses  to  exercise  a  purely  discretionary  power  in  favor 
of  the  estate,  as  to  vary  the  securities,  he  will  not  be  removed ;  * 
nor  will  he  be  removed  for  a  mere  constructive  fraud,  as  for 
buying  the  trust  property  at  his  own  sale;  ^  and  where  a  trust 
was  to  take  effect  in  the  future  upon  the  happening  of  a  certain 
event,  and  in  the  meantime  it  was  to  remain  passive,  the  court 
refused  to  interfere,  and  remove  the  trustee  for  an  alleged  mis- 
feasance.^ In  no  case  ought  the  trustee  to  be  removed  where 
there  is  no  danger  of  a  breach  of  trust,  and  some  of  the  bene- 

»  Nickels  v.  Philips,  18  Fla.  732. 

=  In  the  Matter  of  Durfee,  4  R.  I.  401;  Att.  Gen.  v.  Coopers'  Co.,  19 
Ves.  192;  Att.  Gen.  v.  Caius  College,  2  Keen,  150;  Lathrop  v.  Smalley,  23 
N.  J.  Eq.  192. 

'  Lee  V.  Young,  2  Y.  &  C.  Ch.  532. 

*  Webb  V.  Dietrich,  7  W.  &  S.  401. 

'  Sloo  V.  Law,  1  Blatch.  C.  C.  512. 

320,  it  is  said  by  Gray,  J.:    "The  212,  it    is  said:     "While  inharmo- 

power  of  a  court  of  equity  to  remove  nious  relations  between  trustee  and 

a  trustee,  and  to  substitute  another  cestui  que  trust,  not  altogether  the 

in  his  place,  is  incidental  to  its  par-  fault  of  the  former,  will  not  generally 

amount  duty  to  see  that  trusts  are  be  considered  a  sufficient  cause  for 

properly  executed;  and  may  prop-  removal,     yet     where     they     have 

erly  be  executed  whenever  such  a  reached  so  acrimonious  a  condition 

state  of  mutual  ill-feeling,  growing  as  to  make  any  personal  intercourse 

out  of  his  behavior,  exists  between  impossible  and  to  hinder  the  proper 

the  trustees,  or  between  the  trustee  transaction  of  business  between  the 

and  the  beneficiaries,  that  his  con-  parties,  a  due  regard  for  the  inter- 

tinuance  in  office  would  be  detri-  ests  of  the  estate  and  the  rights  of 

mental  to  the  execution  of  the  trust,  the  cestui  que  trust  may  require  a 

even  if  for  no  other  reason  than  that  change  of  trustee." 

human  infirmity  would  prevent  the  Similar    principles    apply    where 

cotrustee  or  the  beneficiaries  from  there  is  hostility  bet  ween  co-trustees, 

working  in  harmony  with  him,  and  Myers's  Estate,  205  Pa.  St.  413;  Dis- 

although     charges     of     misconduct  brow  v.  Disbrow,  61  N.  Y.  S.  614, 

against  him  are  either  not  made  out,  46  App.  Div.  Ill  (aflBrmed,  167  N. 

or  are  grossly  exaggerated."  Y.  606). 


In  Price's  Estate,  209  Pa.  St.  210, 


477 


§  27G  O.]        FOR    WHAT   CAUSES    MAT    BE    REMOVED.      [CHAP.  IX. 

ficiaries  are  satisfied  with  the  management.*  Nor  will  a  trustee 
be  removed  for  every  violation  of  duty,  or  even  breach  of  the 
trust,  if  the  fund  is  in  no  danger  of  being  lost.^  (a)  The  power 
of  removal  of  trustees  appointed  by  deed  or  will  ought  to  be 
exercised  sparingly  by  the  courts.  There  must  be  a  clear  neces- 
sity for  interference  to  save  the  trust  property.  Mere  error, 
or  even  breach  of  trust,  may  not  be  sufficient;  there  must  be 
such  misconduct  as  to  show  want  of  capacity  or  of  fidelity, 
putting  the  trust  in  jeopardy.^ 

§  276  a.  A  trust  will  not  be  allowed  to  fail  for  want  of  a 
trustee;  (b)  and  if  the  nominee  dies  before  qualifying  or  after- 
ward, the  court  will  appoint  a  trustee.*  So  if  no  trustee  is 
appointed  by  the  grantor,  or  his  appointment  is  void  for  uncer- 
tainty.^ But  if  the  trustee  of  a  power  that  is  purely  personal 
and  discretionary  refuses  to  qualify,  the  trust  cannot  be  exe- 
cuted.^ 

1  Berry  v.  Williamson,  11  B.  Mon.  245. 

2  Lathrop  v.  Smalley,  23  N.  J.  Eq.  192;  Corlies  t;.  Corlies,  id.  [Water- 
man V.  Alden,  144  III.  90;  Williams  v.  Nichol,  47  Ark.  254;  Matter  of  O'Hara, 
62  Him,  531.] 

»  Massy  v.  Stout,  4'Del.  Ch.  274.  [  In  re  Thieriot,  102  N.  Y.  S.  952,  117 
App.  Div.  686;  Murdoch  v.  Elliot,  77  Conn.  247;  PfefiFerle  v.  Herr,  (N.  J. 
1909)  71  A.  689;  2  Story's  Eq.  Jur.  §  1289.] 

*  Schouler,  Petitioner,  134  Mass.  426;  Mendenhall  v.  Mower,  16  S.  C. 
304. 

*  State  V.  Griffith,  2  Del.  Ch.  392. 

«  Jones  V.  Fulghum,  3  Tenn.  Ch.  193.    [  See  infra,  §  503,  note.] 

(a)  The  point  is  discussed  in  the  The    case    was    treated    as    falling 

case  of  In  re  Wrightson,  [1908]    1  within    the    general    principle    laid 

Ch.  789,  where  the  trustees  admitted  down    in   Letterstedt  v.   Broers,   9 

that  they  had  been  guilty  of  a  breach  A.  C.  371.    See  In  re  Hoysradt,  45 

of  trust.     A  majority  of  the  cestuis  N.  Y.  S.  841. 

asked  for  their  removal,  but  a  large  (6)  Harris  v.  Brown,  124  Ga.  310; 

proportion  opposed  removal.     The  Dwyer  v.  Cahill,  228  111.  617;  French 

court  declined  to  remove  them,  on  v.  Northern  Trust  Co.,  197  111.  30; 

the  ground  that  "it  would  not  be  for  Herrick  v.  Low,  103  Me.  353;  Sells  v. 

the  welfare  of    the  cestuis  que  trust  Delgado,  186  Mass.  25;  Hilest;.  Gar- 

generally,  or  necessary  for  the  pro-  rison,  70  N.  J.  Eq.  605;  Inhabitants 

tection  of  the  trust  estate,  that  of  Anson,  Petitioners,  85  Me.  79. 
these  trustees  should  be  removed." 

478 


CHAP.  IX.]         PRINCIPLES    ON    WHICH    COURTS    ACT.  [§  277. 

§  277.  In  removing  and  substituting  trustees,  the  court  does 
not  act  arbitrarily,  but  upon  certain  general  principles,  and 
after  a  full  consideration  of  the  case.  Irregularities  in  the 
proceedings  of  appointment  not  affecting  the  jurisdiction  of 
the  court  will  not  avail  in  collateral  suits. ^  (a)  But  an  appoint- 
ment where  there  is  no  vacancy,  the  former  trustee  not  having 
relinquished  the  trust  nor  been  deprived  of  it  for  abuse  or  mis- 
management, is  a  nullity.^  Where  the  trustees  are  required  to 
give  security,  it  will  order  such  notice  and  to  such  persons  as 
it  sees  fit.^  It  always  has  regard  to  the  wishes  of  the  author  of 
the  trust,  to  be  gathered  from  the  instrument  of  trust;  if  he 
has  expressed  a  disapprobation  of  an  individual,  the  court 
would  refrain  from  appointing  him;  and  so  the  court  will  not 
appoint  a  new  trustee  with  a  view  to  the  interest  of  some  of  the 
cestuis  que  trust,  for  the  trustee  ought  to  hold  an  even  hand  be- 
tween all  parties,  and  not  favor  a  particular  one.  Further, 
the  court  has  regard  to  the  nature  of  the  trust,  and  to  those 
instrumentalities  by  which  it  can  best  be  carried  into  execution.* 
Accordingly,  courts  will  not  substitute  trustees  upon  the  mere 
caprice  of  the  cestui  que  trust,  and  without  a  reasonable  cause,^ 
and  although  the  instrument  of  trust  or  a  statute  gives  the 
cestui  que  trust  full  power  to  remove  and  appoint  other  trustees, 
yet  good  cause  must  be  shown  or  the  court  cannot  be  put  in 
motion,"  nor  will  they  appoint  a  trustee  out  of  the  jurisdiction 

1  McKim  V.  Doane,  137  Mass.  195. 

»  Augusta  V.  Walton,  77  Ga.  525,  526.  [  Mullanny  v.  Nangle,  212  111. 
247;  La  Forge  v.  Binns,  125  111.  App.  527.] 

»  Matter  of  Robinson,  37  N.  Y.  271. 

*  In  re  Tempest  L.  R.  1  Ch.  487. 

"  O'Keeffe  v.  Calthorpe,  1  Atk.  18;  Pepper  v.  Tuckey,  2  Jon.  &  La.  95; 
Ward  V.  Dorch,  69  N.  C.  279;  Bouldin  v.  Alexander,  15  WaU.  132. 

"  Stevenson's  Appeal,  59  Penn.  St.  101;  68  id.  101. 

{a)  A  new  trustee  will  not  be  Boyer  v.  Decker,  40  N.  Y.  S.  469. 
appointed  simply  to  distribute  a  In  New  York  the  execution  of  a  de- 
trust  fund  in  the  possession  of  his  cree  removing  a  testamentary  trus- 
predecessor's  executor  or  adminis-  tee  or  executor  is  not  stayed  by  an 
trator,  but  such  representative  will  appeal.  Code  Civ.  Proc,  §2583; 
be  ordered  to  make  the  payment.  Stout  v.  Betts,  74  Hun,  266. 

479 


§  277.]  PRINCIPLES    ON    WHICH    COURTS    ACT.         [CHAP.  IX. 

without  security.^  (a)  There  is  no  absolute  rule  of  law  that 
prevents  a  cestui  que  trust  from  being  a  trustee  for  himself  and 
others,  and  the  court  is  sometimes  obliged  to  appoint  him; 
but  the  arrangement  is  irregular  and  sometimes  disastrous,  and 
the  court  will  not  sanction  it  if  it  can  be  avoided.^  So  a  hus- 
band may  be  trustee  for  a  wife,  and  a  wife  for  a  husband,^  but 
difficulties  frequently  grow  out  of  the  relation,  and  the  courts 
have  sometimes  said  that  they  would  not  make  such  appoint- 
ments.* In  no  case  will  the  court  remove  old  trustees  and 
substitute  new  ones,  unless  satisfied  of  the  necessity  of  the  re- 
moval, and  of  the  fitness  of  the  new  trustee  proposed.  Nor 
will  the  court  authorize  the  new  trustees  to  nominate  their 
successors.  There  was  some  doubt  and  difference  of  practice 
at  first;  ^  but  it  is  now  settled,  except  in  charities,®  that  the 

1  Ex  parte  Roberts,  2  Strob.  86;  Gibson's  Case,  1  Bland,  138. 

*  Passingham  v.  Sherborne,  9  Beav.  424;  Reid  v.  Reid,  30  Beav.  388; 
Ex  parte  Glutton,  17  Jur.  988;  Ex  parte  Gonybeare's  Settlement,  1  W.  R. 
458;  Wilding  v.  Bolder,  21  Beav.  222;  Graig  v.  Hone,  2  Edw.  Gh.  554.  [  Story 
V.  Palmer,  46  N.  .1.  Eq.  1;  Steams  v.  Fraleigh,  39  Fla.  603;  Gurran  v.  Green, 
18  R.  I.  332;  People  v.  Donohoe,  70  Hun,  317;  Robertson  v.  De  Brulatour, 
188  N.  Y.  301;  Woodbridge  v.  Bockes,  59  App.  Div.  (N.  Y.)  503.  See 
supra,  §  59.] 

'  Tweedy  v.  Urquhart,  30  Ga.  446;  Livingston  v.  Livingston,  2  Johns. 
Ch.  541;  Bennett  v.  Davis,  2  P.  Wms.  316;  Shirley  v.  Shirley,  9  Paige,  363; 
Jamison  v.  Brady,  6  S.  &  R.  467;  Boykin  v.  Gipples,  2  Hill,  Gh.  200;  Picquet 
V.  Swann,  4  Mason,  455;  Griffith  v.  Griffith,  5  B.  Mon.  113;  Gibson's  Gase, 
1  Bland,  138;  Watkinsy.  Jones,  28Ind.  12;  Gardner  v.  Weeks,  32  Ga.  696. 
[Stearns  v.  Fraleigh,  39  Fla.  603.] 

*  Dean  v.  Sanford,  9  Rich.  Eq.  423.  But  the  court  will  not  appoint  the 
husband  trustee,  under  a  trust  for  the  separate  use  of  his  wife.  Ely  v.  Bur- 
gess, 11  R.  I.  115;  JB^x  parte  Hunter,  Rice,  Ch.  (S.  C.)  294. 

'  Joyce  V.  Joyce,  2  Moll.  276;  White  v.  White,  5  Beav.  221. 
«  Lewin  on  Trusts,  606  (5th  ed.). 

(a)  A    foreign    corporation    not  service  of  process  might  be  made.  In 

quahfied  to  do  business  in  the  State  re  Satterthwaite's  Estate,  60  N.  J. 

where  the  trust  is  to  be  executed  but  Eq.  347.    See  also  Penn.  Ins.  Co.  v. 

named  as  trustee  in  the  will  creat-  Bauerle,  143  111.  459;  Farmers'  L.  & 

ing  the  trust  has  been  held  to  be  T.  Co.  v.  Lake  St.  El.  R.  Co.,  68  111. 

competent  to  act  as  trustee  upon  fur-  App.  666;  Glaser  v.  Priest,  29  Mo. 

nishing  a  proper  bond  and  appoint-  App.   1;  Bell  v.  White,  73  A.  861 

ing   a   resident   agent  upon   whom  (N.  J.  Ch.  1909). 
480 


CHAP.  IX.]  BANKRUPTCY    OF   TRUSTEES.  [§  279. 

court  will  not  delegate  this  part  of  its  jurisdiction  to  new  ap- 
pointees.^ 

§  278.  If  the  instrument  of  trust  requires  the  trustees  of  a 
charity  to  have  a  particular  residence,  it  is  irregular  to  appoint 
others  not  answering  that  description,  provided  there  are  those 
proper  to  be  trustees.^  But  if  it  is  the  custom  to  appoint  such 
non-residents,  the  court  will  not  remove  them,  but  will  see  that 
vacancies  when  they  occur  are  properly  filled.^  And,  generally, 
if  an  irregular  appointment  has  been  acquiesced  in  for  a  long 
time,  the  court  will  not  remove.'*  In  making  the  selection,  the 
inquiry  is  whether  the  proposed  appointment  is  proper,  not 
whether  it  is  the  most  proper.^ 

§  279.  It  is  laid  down  in  several  cases,  that  if  a  trustee  be- 
comes bankrupt  he  may  be  removed,^  or  if  he  becomes  insol- 
vent and  compounds  with  his  creditors;  and  this  is  on  the  ground 
that  the  cestui  que  trust  has  a  right  to  have  the  trust  administered 
by  responsible  trustees,  (a)  The  English  Bankrupt  Act  ^  pro- 

1  Bayley  v.  Mansell,  4  Madd.  226;  Brown  v.  Brown,  3  Y.  &  C.  395; 
Bowles  V.  Weeks,  14  Sim.  591;  Oglander  v.  Oglander,  2  De  G.  &  Sm.  381; 
Southwell  V.  Ward,  Taml.  314;  Holder  v.  Durbin,  11  Beav.  594;  overruling 
White  f.  White,  5  Beav.  221. 

«  Att.  Gen.  v.  Cowper,  1  Bro.  Ch.  439. 

«  Att.  Gen.  v.  Daugars,  33  Beav.  621;  Att.  Gen.  v.  Clifton,  32  Beav. 
596;  Att.  Gen.  v.  Stamford,  1  Phill.  737. 

*  Att.  Gen.  v.  Cuming,  2  Y.  &  C.  Ch.  Ca.  150. 

*  Lancaster  Charities,  7  Jur.  (n.  s.)  96. 

*  Bainbrigge  v.  Blair,  1  Beav.  495;  In  re  Roche,  1  Conn.  &  Laws,  306; 
Com.,  &c.,  V.  Archbold,  11  Ir.  Eq.  187;  Harris  v.  Harris,  29  Beav.  107. 

7  12  &  13  Vict.  0.  106,  §  130. 

(a)  The  court  has  declined  to  re-         In  England  it  has  been  held  that 

move  a  trustee  merely  because  it  has  in  an  action  to  foreclose  a  mortgage 

been  in  financial  difficulties,  which  held  by  a  bankrupt  trustee,  the  ccs- 

have,    however,    been    surmounted,  tuis  should  be  made  parties,  since 

Assets  Realization  Co.  v.  Trustees,  the  bankrupt  trustee  does  not  prop- 

etc,  Ins.  Corp.,  65  L.  J.  Ch.  74.  erly  represent  them.    Francis  r.  Har- 

Statutes     frequently     state     bank-  rison,  43  Ch.  Div.   183;   Aylward  v. 

ruptcy  or  insolvency  as  an  adequate  Lewis,  [1891]  2  Ch.  81. 
cause  for  removal,  but  the  language 
is  usually  permissive. 

VOL.  I.  —  31  481 


§  280.]  FOR  WHAT  CAUSES  TRUSTEES  MAT  RESIGN.  [CIIAP.  IX. 

vides,  that,  if  a  trustee  becomes  bankrupt,  the  chancellor,  on  pe- 
tition and  due  notice,  may  order  the  trust  estate  to  be  conveyed 
by  the  bankrupt,  the  assignees,  and  all  other  persons  interested, 
to  such  other  persons  as  the  chancellor  shall  think  fit,  upon  the 
same  trusts.  Under  this  statute  it  has  been  determined  that 
the  court  will  exercise  its  discretion  whether  to  remove  the 
bankrupt  or  not,^  but  that  prima  facie  the  bankrupt  is  to  be 
removed,^  although  he  may  have  obtained  his  discharge.^  But 
the  court  will  not  interfere  long  after  the  bankruptcy  to  remove 
the  trustee,  if  he  has  obtained  his  discharge.*  Generally  the 
insolvency  or  bankruptcy  of  a  trustee  does  not  disqualify  him 
for  the  trust  ,^  nor  does  his  bankruptcy  affect  the  trust  estate 
in  his  hands;  and  his  certificate  does  not  discharge  him  from 
fiduciary  obligations.^  In  the  United  States,  trustees  are,  or 
may  be,  required,  in  the  great  majority  of  cases,  to  give  bonds 
or  security  for  the  safety  of  the  trust  fund:  in  all  such  cases  it 
would  seem  that  the  bankruptcy  of  the  trustee  would  not  per 
se  render  him  removable,  unless  there  was  some  misconduct 
that  rendered  it  proper  for  the  court  to  exercise  a  sound  dis- 
cretion. 

§  280.  In  Bogle  n.  Bogle,'  the  court  determined  that  one 
who,  without  compensation  and  for  no  definite  time,  undertook 
a  trust  for  the  benefit  of  another  was  entitled  to  a  decree  dis- 
charging him,  when  the  further  care  of  the  property  became 
inconvenient  to  him.  Generally,  trustees  who  have  acted  are 
not  entitled,  as  against  the  trust  estate,  to  refuse  at  pleasure 
to  continue:  they  must  have  some  good  cause  to  entitle  them  to 


»  i?e  Roche,  2  Dr.  &  W.  289;  2  H.  L.  Caa.  461. 

*  Bainbrigge  v.  Blair,  1  Beav.  495. 
»  Ibid. 

*  Re  Bridgman,  1  Dr.  &  Sm.  164. 

«  Shryock  v.  Waggoner,  28  Pa.  St.  430;  Turner  v.  Maule,  5  Eng.  L.  & 
Eq.  222;  Ex  parte  Watts,  4  Eng.  L.  &  Eq.  67.  [  Moorman  t>.  Crockett,  90 
Va.  185.] 

«  Belknap  v.  Belknap,  5  Allen,  468. 

^  3  Allen,  158. 
482 


CHAP.  IX.]  FOR  WHAT  CAUSES  TRUSTEES  MAY  RESIGN.         [§  280. 

be  relieved.^  (a)  If  they  have  received  a  legacy  or  other  benefit 
given  to  them  as  trustees,  they  cannot  be  allowed  to  retire  ex- 
cept for  good  cause,^  at  least  without  restoring  the  legacy.  It 
is  a  good  cause  for  relief  if  the  cestui  que  trust  incumber  and 
complicate  the  estate,  and  embarrass  the  trustee  in  the  perform- 
ance of  his  duties.^  But  where  there  is  no  cause  for  a  discharge, 
except  the  wish  of  the  trustee,  or  his  convenience,  he  ought  to 
pay  the  costs  of  the  proceeding,  and  not  impose  the  burden 
and  expense  upon  the  estate;*  and  so  if  the  old  trustee  is  re- 
moved for  misconduct  on  his  part.^  But  if  the  trustee  has  a 
good  reason  for  his  discharge,  he  will  be  entitled  to  his  costs  out 
of  the  estate  as  between  solicitor  and  client.®  Courts  of  equity, 
by  virtue  of  their  general  chancer^'  powers,  have  jurisdiction 
to  accept  the  resignation  of  trustees,  or  to  remove  them  for 
cause,  and  to  appoint  new  trustees;  and  courts  of  probate  in 
several  States  have  power  by  statute  to  remove  and  appoint 
new  trustees,  whether  they  are  created  by  will  or  deed.^    Pro- 

*  Greenwood  v.  Wakeford,  1  Beav.  576;  Cniger  v.  Halliday,  11  Paige, 
314;  Jones  v.  Stockett,  2  Bland,  409;  Re  Meloney,  2  Jon.  &  La.  391. 

«  Craig  V.  Craig,  3  Barb.  Ch.  76. 

'  Howard  t^.  Rhodes,  1  Keen,  481;  Coventry  v.  Covuutry,  id.  758;  Green- 
wood V.  Wakeford,  1  Beav.  576;  Hamilton  v.  Frye,  2  Moll.  458. 

*  Matter  of  Jones,  4  Sanf.  Ch.  615;  Howard  v.  Rhodes,  1  Keen,  581; 
Courtenay  v.  Courtenay,  3  Jon.  &  La.  529. 

'  Ex  parte  Greenhouse,  1  Madd.  92;  Howard  v.  Rhodes,  1  Keen,  581. 

*  Coventry  v.  Coventry,  1  Keen,  758;  Taylor  v.  Glan\ille,  3  Madd. 
176;  Curtcis  v.  Chandler,  6  id.  123;  Greenwood  v.  Wakeford,  1  Beav.  581. 
[  Richmond  v.  Arnold,  68  A.  427  (R.  L  1907) ;  But  see  Wilson  v.  Clayburgh, 
215  111.  506.] 

'  Bowditch  V.  Bannelos,  1  Gray,  220;  King  v.  Donnelly,  5  Paige,  46; 
De  Peyster  v.  Clendining,  8  Paige,  295;  Field  v.  Arrowsmith,  3  Humph. 
442;  McCosker  v.  Brady,  1  Barb.  Ch.  329;  In  re  Potts,  1  Ash.  340;  Mat- 
ter of  Mechanics'  Bank,  2  Barb.  S.  C.  446;  Dawson  t'.  Dawson,  Rice,  Eq. 
243;  Lee  v.  Randolf,  2  Hen.  &  M.  12;  In  re  Eastern  R.  R.  Co.,  120  Mass. 
412.    [  The  matter  is  dealt  with  by  statute  in  nearly  all  the  States.] 

(a)  A  trustee  will  not  be  allowed  S.  104.  The  court  may  impose  con- 
to  resign  if  a  pending  suit  or  other  ditions  on  accepting  a  resignation; 
cause  prevents  a  settlement  of  his  e.  g.,  a.  waiver  of  commissions.  In  re 
accounts.    In  re  Olmstead,  49  N.  Y.  Curtiss'  Estate,  37  N.  Y.  S.  586. 

483 


§  281.]  SAME  PERSON  EXECUTOR  AND  TRUSTEE.      [CHAP.  IX. 

ceedings  are  generally  commenced  directly  for  the  removal  and 
appointment  of  trustees;  but  when  a  bill  or  petition  is  already 
pending  for  the  administration  of  the  trust,  the  appointment  or 
removal  may  be  made  upon  motion  in  those  proceedings.^ 
And,  further,  if  the  trusts  created  in  an  instrument  are  of  such 
a  nature  that  they  can  be  severed  without  injury  to  the  estate, 
courts  may  allow  the  trustee  to  resign  a  part,  and  will  commit 
that  part  to  other  trustees  under  proper  arrangements  for 
security.^  But  courts  will  not  remove  trustees  against  their 
will  from  one  part  of  the  trust,  and  leave  them  burdened  with 
the  responsibility  of  the  remainder.^  If  the  cestuis  request  a 
trustee  who  has  misappropriated  funds,  &c.,  to  resign,  and 
make  a  promise  to  him  on  consideration  that  he  will  do  so, 
the  promise  is  void;  it  was  the  trustee's  duty  under  such  cir- 
cumstances to  comply  with  the  request.^ 

§  281.  If  a  testator  in  his  will  appoint  his  executor  to  be  a 
trustee,  it  is  as  if  different  persons  had  been  appointed  to  each 
office ;  ^  a  court  of  equity  cannot  remove  him  from  the  executor- 
ship, for  courts  of  probate  have  exclusive  jurisdiction  over  the 
appointment  and  removal  of  administrators  and  executors;  but 
if  the  office  of  trustee  is  separate  from  and  independent  of  the 
office  of  executor,  a  court  of  equity  may  remove  him  from  the 
office  of  trustee,  and  leave  him  to  act  as  executor;  or  if  he  has 

1  V.  Osborne,  6  Ves.  455;  Webb  v.  Shaftesbury,  7  Ves.  487; «;. 

Roberts,  IJ.  &  W.  251;  Ex  parte  Potts,  1  Ash.  340. 

*  Craig  V.  Craig,  3  Barb.  Ch.  76.  [  In  re  Aston's  Trusts,  25  L.  R.  Ir. 
96;  Enghsh  Trustee  Act,  1893,  §  10.]  But  where  there  is  a  single  power 
of  appointment  in  the  trust  instrument,  though  the  estates  are  of  a  differ- 
ent description,  or  are  held  under  a  different  title,  or  upon  different  trusts, 
there  is  no  authority  for  dividing  the  trusts,  and  appointing  different  sets 
of  trustees  for  the  different  estates  or  trusts.  Cole  i^.  Wade,  16  Ves.  27;  Re 
Anderson,  1  Llo.  &  Goo.  t.  Sugd.  29;  Curtis  i'.  Smith,  6  Blatch.  537. 

*  Sturges  V.  Knapp,  31  Vt.  1. 

*  Withers  v.  Ewing,  40  Ohio  St.  406,  407. 

*  Parsons  v.  Lyman,  5  Blatch.  C.  C.  170;  Perkins  v.  Lewis,  41  Ala.  649. 
The  fact  of  qualification  as  executor  by  a  person  named  in  the  will  both 
as  executor  and  trustee  does  not  of  itself  prove  his  acceptance  of  the  office 
of  trustee.    Anderson  v.  Earle,  9  S.  C.  460. 

484 


CHAP.  IX.]         WHO    MAT    INSTITUTE    PROCEEDINGS.  [§  282. 

completed  his  duties  as  executor,  and  is  holding  and  adminis- 
tering the  estate  simply  as  trustee,  a  court  of  equity  may  remove 
him.^  (a) 

§  282.  Courts  of  equity,  having  jurisdiction  to  remove  and 
appoint  trustees,^  may  be  applied  to  either  by  bill  or  petition ;  ^ 
or,  if  a  bill  is  already  pending  for  administration  of  the  estate, 
application  may  be  made  in  those  proceedings,  by  motion.'*    All 

1  Wood  V.  Brown,  34  N.  Y.  339;  Leggett  v.  Hunter,  25  Barb.  81;  19 
N.  Y.  445;  Craig  i'.  Craig,  3  Barb.  Ch.  76;  Matter  of  Wordsworth,  2  Barb. 
Ch.  381;  Ex  parte  Dover,  5  Sim.  500;  Quackcnboes  v.  Southwick,  41  N.  Y. 
117. 

*  Bowditch  V.  Bannelos,  1  Gray,  220,  and  cases  cited  last  section;  Wil- 
liamson V.  Suydam,  6  Wall.  723;  Livingston,  Pet'r,  34  N.  Y.  555.  In  ab- 
sence of  statutory  provision,  the  weight  of  authority  requires  that  the 
proceedings  should  commence  by  bill. 

>  Mitchell  V.  Pitner,  15  Ga.  319;  Ex  parte  Knust,  1  Bail.  Eq.  489;  Ex 
parte  Grenville  Academies,  7  Rich.  470;  Matter  of  Van  Wyck,  1  Barb. 
Ch.  565;  Ex  parte  Hussey,  2  WTiart.  330;  Ex  parte  Rces,  3  V.  &  B.  11; 
Miller  v.  Knight,  1  Keen,  129;  Barker  v.  Pcile,  2  Dr.  &  Sm.  340.  This  mat- 
ter is  mostly  regulated  by  the  statutes  of  the  several  States.  Although 
proceedings  by  statute  may  be  originated  by  petition,  yet  the  proceedings 
may  be  by  bill.  Barker  v.  Peile,  ut  supra;  Re  Foster's  Will,  15  Hun  (N.  Y.), 
387;  Re  Ballou,  Pet'r,  11  R.  I.  360.  In  some  cases  it  is  said  that  the  right 
to  proceed  by  petition  is  confined  to  cases  where  there  is  a  breach  of  the 
trust.  In  re  Sanford  Charity,  2  Mer.  456;  Re  Livingston,  34  N.  Y.  567. 
[  See  Zehnbar  v.  Spillman,  25  Fla.  591,  594;  Tuttle  t-.  Merchant's  Nat. 
Bank,  19  Mont.  11.] 

*  V.  Osborne,  6  Ves.  455;  v.  Roberts,  1  J.  &  W.  251;  Webb 

V.  Shaftesbury,  7  Ves.  487;  Ex  parte  Potts,  1  Ash..  340. 

(a)  In  a  case  where  the  powers  ing  probate  courts  power  of  removal 

and  duties  of  the  e.xecutor-trustee  and  general  control  over  testamen- 

werc  so  intermingled  and  inseparable  tary  trustees. 

that  removal  as  trustee  would  be  in-  The   fact   that    a   trustee   whose 

effective  if  he  was  allowed  to  con-  removal  is  asked  and  who  resides 

tinue  as  executor,  it  was  held  that  a  within  the  jurisdiction  of  the  court, 

court  of  equity  might  restrain  him  was  appointed  by  a  will  of  a  citizen 

from  continuing  to  act  as  trustee,  of  another  State  and  that  the  will 

although  this  necessarily  restrained  was  probated  in  the  other  State  will 

him  from  acting  as  executor.    Bent-  not  prevent  his  removal  for  cause, 

ley   V.    Dixon,    60   N.    J.    Eq.    353.  Jones  v.  Jones,  30  N.  Y.  S.  177,  187. 

Many  States  have  avoided  the  dif-  See  also  Farmers'  L.  &  Tr.  Co.  v. 

ficulty  arising  in  such  a  case  by  giv-  Pendleton,  75  N.  Y.  S.  294. 

485 


282. 


WHO    MAY    INSTITUTE    PROCEEDINGS.         [CHAP.  IX. 


persons  interested  in  the  trust  may  institute  proceedings  in  their 
own  names,  but  notice  should  be  given  to  all  other  parties  in 
interest.^  (a)  If  the  trustee  must  give  security  for  the  fund, 
notice  is  within  the  discretion  of  the  court;-  but  if  the  trust 

•  Abbott,  Pet'r,  55  Maine,  580;  Williamson  v.  Wickersham,  2  Coll.  52; 
Guion  V.  Melvin,  69  N.  C.  242;  Wardle  v.  Hargreaves,  11  Law  Jour.  (n.  8.) 
Ch.  126;  Henry  v.  Doctor,  9  Ohio,  49.  [  See  Dyer  v.  Leach,  91  Cal.  191; 
Kennard  v.  Bernard,  98  Md.  513.]  As  to  who  are  parties  interested  entitled 
to  notice.  Bradstreet  v.  Butterfield,  129  Mass.  339.  In  Pennsylvania 
under  an  act  which  provides  that  proceedings  shall  be  upon  petition  "by 
any  person  interested,  whether  such  interest  be  immediate  or  remote,"  it 
was  held  that  the  interest  for  such  a  purpose  must  be  such  as  will  certainly 
fall  into  possession  sometime;  and  a  bare  possibility,  dependent  on  the 
death  of  the  first  taker  without  issue,  is  not  such  an  interest  as  will  authorize 
a  citation.  Keene's  App.,  60  Penn.  St.  506.  But  see  Hartman's  App., 
90  id.  206,  under  a  subsequent  statute. 

*  Matter  of  Robinson,  37  N.  Y.  261. 


(a)  Trustees  who  have  disclaimed 
the  trust  need  not  be  made  parties 
to  a  proceeding  to  appoint  a  trustee. 
Brandon  v.  Carter,  119  Mo.  572. 
Nor  is  the  creator  of  the  trust  a 
necessary  party.  De  Peyster  v. 
Beekman,  55  How.  Pr.  90.  And 
in  jurisdiction  where  title  vests  in 
the  court  on  the  death  of  a  sole 
trustee,  no  notice  need  be  given 
to  liis  personal  representatives  or 
heirs.  In  re  Carpenter,  131  N.  Y. 
86.  See  also  Sullivan  v.  Latimer, 
35  S.  C.  422. 

A  new  appointment  ought  not  to 
be  made  without  notice  to  all  the 
cestuis.  Matter  of  Bartells,  96  N. 
Y.  S.  579,  109  App.  Div.  586;  In  re 
Eamshaw,  196  N.  Y.  330.  But  see 
Kennard  v.  Bernard,  98  Md.  513; 
Offutt  V.  Jones,  110  Md.  233,  240. 
But  a  cestui  who  has  assigned  all  his 
interest  is  not  entitled  to  notice. 
Van  Wyck  v.  Richman,  68  N.  Y.  S. 
473.  In  some  States  statute  pro- 
visions make  a  new  appointment  in- 

486 


valid  where  proper  notice  has  not 
been  given  to  all  the  cestuis.  Sim- 
mons V.  McKinlock,  98  Ga.  738,  745. 
See  IV  N.  Y.  Consol.  Laws  (1909), 
p.  3395,  §  111;  /n  re  Eamshaw,  196 
N.  Y.  330;  Butler  v.  Butler,  164  111. 
171. 

An  adverse  claimant  to  the  land 
which  is  the  subject  of  the  trust  is 
not  entitled  to  be  heard  as  to  the 
appointment  of  a  trustee  of  the  land. 
White  River  Lumber  Co.  v.  Clarke, 
70  A.  247  (N.  H.  1908). 

Beneficiaries  of  several  trusts  es- 
tablished by  the  same  will  with  the 
same  trustee  for  all  maj^  imite  in  a 
proceeding  for  removal  when  they 
have  common  groimd  for  relief. 
Gartside  v.  Gartside,  113  Mo.  348. 

A  trustee  ought  not  to  br  removed 
by  an  ex  parte  proceodinf^  mthout 
notice  to  him,  and  it  hns  been  held 
that  an  appointment  of  a  new  trus- 
tee after  such  a  removal  was  invalid. 
Hitch  V.  Stonebraker,  125  Mo.  128. 


CHAP.  IX.]        WnO    MAY   INSTITUTE    PROCEEDINGS.  [§  282. 

instrument  provides  that  notice  of  the  proceedings  for  the  ap- 
pointment of  new  trustees  shall  be  given  to  particular  persons, 
the  appointment  will  be  irregular  if  the  notice  is  not  given.* 
The  cestui  que  trust  and  those  directly  interested  may  of  course 
originate  the  suit,'^  and  those  interested  in  remainder  or  re- 
version may  begin  proceedings.'  (a)  The  trustees  may  bring 
the  suit  against  the  cestui  que  trust;  *  or  one  or  more  of  several 
trustees  may  bring  the  suit  against  one  or  more  of  their  co- 
trustees, joining  the  cestui  que  trust  either  as  plaintiff  or  de- 
fendant."^ In  all  public  charities  the  Attorney  General  may 
begin  proceedings  by  information  or  petition  with  or  without 
a  relator.^  But  where  a  settlor  had  conveyed  property  to  a 
trustee  for  himself  for  life,  and  at  his  decease  to  his  issue  ac- 
cording to  the  statute  of  distributions,  and  in  case  of  his  dying 
without  issue  to  his  nephews,  it  was  held  that  the  trust  was 
only  an  implied  trust  for  the  nephews;  that  they  had  no  inter- 
est in  the  express  trusts  for  the  settlor  for  life;  and  that  they 

'  Washington,  &c.  R.  R.  Co.  v.  Alexander,  &c.  R.  R.  Co.,  19  Grat.  592. 

*  Bambrigge  v.  Blair,  1  Beav.  495;  Bennett  v.  Honywood,  Amb.  708; 
Buchanan  v.  Hamilton,  5  Vee.  722;  Portsmouth  v.  Fellows,  5  Madd.  450; 
Howard  v.  Rhodes,  1  Keen,  581;  M,illard  v.  Eyre,  2  Ves.  Jr.  94;  In  Matter 
of  Smith's  Settlement,  2  DeG.  &  Sm.  781;  £z  ■parte  Tunno,  1  Bail.  Eq. 
395. 

»  Finlay  v.  Howard,  2  Dr.  &  W.  490;  Cooper  v.  Day,  1  Rich.  Eq.  26; 
Re  Livingston,  34  N.  Y.  567;  Joyce  v.  Gunnels,  2  Rich.  Eq.  260;  Re  Shep- 
pard,  1  N.  R.  76,  overruling  same  case,  10  W.  R.  704;  s.  c.  2  De  G.,  F.  & 
J.  423.     [  Chappell  v.  Clarke,  94  Md.  178.] 

*  Coventry  v.  Coventry,  1  Keen,  758;  Greenwood  v.  Wakeford,  1  Beav. 
576. 

^  Lake  v.  De  Lambert,  4  Ves.  592. 

6  Att.  Gen.  v.  London,  3  Bro.  Ch.  171;  Att.  Gen.  v.  Stephens,  3  M.  A 
K.  347;  Att.  Gen.  v.  Clack,  1  Beav.  467;  Re  Bedford  Charity,  2  Swanst. 
520;  Wilson  v.  Wilson,  2  Keen,  251;  Re  Fowey's  Charities,  4  Beav.  225. 
[  Infra,  §  732,  note.] 

(a)  But  it  has  been   held   that  (Ky.  1907).    See  also  Dexter  v.  Cot- 
contingent  remainder-men  are  not  ting,  149  Mass.  92;  Matter  of  Eam- 
necessary  parties  in  a  proceeding  for  shaw,  196  N.  Y.  330;  OfTutt  v.  Jones, 
the  appointment  of  a  new  trustee.  110  Md.  233,  240. 
Whallen  v.  Kelker,  104  S.  W.  1018 

487 


§  283.]  WHERE    ALL    PARTIES    CONSENT.  [CHAP.  IX. 

could  not  maintain  a  petition  for  the  removal  of  the  trustee.* 
And  where  a  cestui  que  tru^t  drew  an  order  on  the  trustees  in 
favor  of  her  children,  it  was  held  that  this  did  not  give  the 
children  such  an  interest  in  the  funds  that  they  were  parties  to 
proceedings  for  the  appointment  of  new  trustees.^  If  a  trustee 
retires,  allowing  a  new  trustee  to  be  appointed,  without  com- 
munication with  the  cestui  que  trust,  and  a  suit  is  instituted 
complaining  of  such  appointment,  but  seeking  no  relief  against 
such  retiring  trustee,  he  is  not  a  necessary  party  .^  And  if  a 
trustee  transfers  the  property  to  a  new  trustee  appointed  by 
order  of  court,  he  will  be  bound  by  the  proceedings,  though 
they  were  irregular  and  without  notice  to  him.'*  If  some  of  the 
cestuis  que  trust  are  minors,  they  ought  to  have  a  guardian  ad 
litem,  but  a  new  trustee  may  be  appointed.^  The  proceedings 
ought  to  be  in  a  court  having  jurisdiction  of  the  original  trust.® 

§  283.  If  all  the  parties  are  sui  juris,  and  consent  to  the  ap- 
pointment of  the  new  trustee,  the  court  will  at  once  make  the 
appointment,  and  direct  the  conveyances  to  be  made.^  But 
generally  it  will  be  referred  to  a  master  to  report  a  proper 
person  to  be  appointed.^  Upon  the  coming  in  of  the  master's 
report,  exceptions  may  be  taken  to  it  in  the  usual  manner; 
but  the  exceptions  must  be  to  the  unfitness  of  the  person 
recommended,^  and  not  that  some  other  one  is  more  fit.''' 

'  In  re  Livingston,  34  N.  Y.  555;  Ex  parte  Brown,  Coop.  295.  [See 
Dexter  v.  Getting,  149  Mass.  92.] 

*  Hawley  v.  Ross,  7  Paige,  103. 

3  Marshall  v.  Sladden,  7  Hare,  427. 

*  Thomas  v.  Higham,  1  Bail.  Eq.  222. 
^  Hunter  v.  Gibson,  16  Sim.  158. 

6  Howard  v.  Gilbert,  39  Ala.  72.  [  But  see  Jones  v.  Jones,  30  N.  Y.  S. 
177,  187.] 

7  O'Keeffe  v.  Calthorpe,  1  Atk.  18;  Young  v.  Young,  4  Cranch,  C.  C.  499. 

8  Howard  v.  Rhodes,  1  Keen,  581;  Buchanan  v.  Hamilton,  5  Ves.  722; 
Att.  Gen.  v.  Stephens,  3  M.  &  K.  352;  Millard  v.  Eyre,  2  Ves.  Jr.  94;  Seton'a 

Decrees,  249;  Matter  of  Stuyvesant,  3  Edw.  Ch.  229; v.  Roberts,  1  J. 

&  W.  251;  Att.  Gen.  v.  Clack,  1  Beav.  474;  Att.  Gen.  v.  Arran,  1  J.  &  W. 
229. 

»  Att.  Gen.  v.  Dyson,  2  S.  &  S.  528. 
">  Ibid. 

488 


CHAP.  IX.]    PROCEEDINGS   TO    SUBSTITUTE   TRUSTEES.  [§  284. 

§  284.  The  appointment  of  a  new  trustee  is  not  complete 
until  the  property  is  vested  in  him;  therefore  the  court  usually 
embraces,  in  the  decree  appointing  a  new  trustee,  a  direction 
for  a  proper  conveyance  to  be  executed  to  him  alone,  or  to  him 
jointly  with  the  continuing  or  remaining  trustees,  by  all  the 
requisite  parties,  whether  remaining  trustees,  or  heirs  or  repre- 
sentatives of  the  last  survivor,  or  trustees  who  have  been  re- 
moved from  office.^  If  the  old  trustee  refuses  to  deliver  the 
property  to  the  new  incumbent,  the  former  and  his  bondsmen 
are  liable.^  In  some  States  it  is  provided  by  statute,  that,  upon 
qualification  by  the  newly  appointed  trustee,  the  trust  estate 
.shall  vest  in  him  in  like  manner  as  it  had  or  would  have  vested 
in  the  trustee  in  whose  place  he  is  substituted.^  It  has  been 
determined  that  no  conveyance  is  necessary  where  such  statutes 
are  in  force,  but  that  the  trust  estate  vests  immediately  upon 
the  appointment,  by  virtue  of  the  statute,  with  all  the  powers 
and  duties  essential  to  the  purposes  of  the  trust .**  And  so  if  the 
instrument  of  trust  provides  for  the  vesting  of  the  estate  in  the 
remaining,  surviving,  or  new  trustees,  upon  the  removal,  resig- 
nation, death,  and  appointment  of  others,  the  trust  estate  will 
vest  according  to  the  provisions  of  the  instrument,  as  the 
creator  of  the  trust  may  mould  it  at  his  pleasure.^  It  has 
already  been  seen  that,  if  one  of  the  trustees  disclaims  without 
having  acted  or  accepted  the  trust,  the  estate  vests  in  the  acting 
trustees;  and  if  a  sole  trustee  disclaims  before  acting,  the  estate 

»  O'Keeffe  v.  Calthorpe,  1  Atk.  18. 

*  Bassett  i'.  Granger,  136  Mass.  174;  McKim  v.  Doane,  137  Mass.  195; 
3  Mass.  Public  Stat.;  Trustees  Act,  1850,  12  &  13  Vict.  c.  74,  §§  33-36. 

Stearly's  App.,  3  Grant,  270.  See  Golder  t^.  Breesler,  105  111.  419.  [  Coster 
e;.  Coster,  109  N.  Y.  S.  798,  125  App.  Div.  516;  Reichert  v.  Mo.  &  111.  Coal 
Co.,  231  111.  238.  See  Mass.  Rev.  Laws,  c.  147,  §  6;  Conn.  Gen.  Stat.  (1902) 
§  250.] 

*  Parker  v.  Converse,  5  Gray,  341;  Re  Fisher's  Will,  1  W.  R.  505;  Smith 
V.  Smith,  3  Dr.  72;  Woolridge  v.  Planters'  Bank,  1  Sneed,  297;  Goss  v.  Single- 
ton, 2  Head,  67;  Gibbs  v.  Marsh,  2  Met.  243,  253;  Duffy  v.  Calvert,  6  Gill, 
487;  Burdick  v.  Goddard,  11  R.  I.  516.  [  See  1  Ames'  Cases  on  Trusts,  (2d 
ed.)  249;  McCann  v.  Randall,  147  Mass.  81.] 

6  Ellis  V.  Boston,  Hartford,  &  Erie  R.  R.,  107  Mass.  13;  National  Web- 
ster Bank  v.  Eldridge,  115  Mass.  424. 

489 


§  285.]  PROCEEDINGS   TO    SUBSTITUTE    TRUSTEES.    [CHAP.  IX. 

vests  in  the  heirs-at-law  subject  to  the  trust.^  So  where  a 
vacancy  results  from  the  incapacity  of  the  trustee,  or  upon  his 
removal  from  the  jurisdiction  of  the  court,  the  want  of  power  to 
compel  a  conveyance,  and  the  necessity  of  the  case,  require  the 
court  to  recognize  the  power  of  the  remaining  trustee  to  con- 
vey to  his  new  cotrustee  without  a  conveyance  from  the  retiring 
or  removed  trustee.^  In  trusts,  that  do  not  come  within  the 
words  or  the  spirit  of  the  statute  in  relation  to  the  vesting  of 
trust  estates  in  new  appointees,  and  in  cases  where  the  trust 
instrument  is  silent  concerning  the  vesting  of  the  estate  in  new 
trustees,  and  there  is  no  necessity  for  a  departure  from  the  ordi- 
nary rule  of  a  conveyance,  a  conveyance  must  be  made  to  the 
new  trustee,  in  order  to  vest  the  estate  in  him.^  When  the 
removed  trustee  fails  to  obey  an  order  of  court  for  the  deliv- 
ery of  the  trust  property  to  the  new  trustee,  the  latter  may 
sue  on  the  bond  of  the  former  trustee  for  damages.^  The  accept- 
ance by  the  new  trustee  of  a  statement  found  among  the  papers 
of  a  deceased  trustee  showing  his  receipts  and  disbursements  on 
account  of  the  trust  estate  may  amount  to  an  accounting  be- 
tween the  old  and  new  trustees.^  (a) 

§  285.  A  trustee  may  be  relieved  from  his  office  by  the  con- 
sent of  all  parties  interested,  without  the  decree  of  a  court,  even 

1  Ante,  §  273. 

*  Cape  V.  Bent,  2  Jur.  653;  O'Reiley  v.  Aldereon,  8  Hare,  101;  Mennard 
V.  Wilford,  1  Sm.  &  Gif.  426;  Eaton  v.  Smith,  2  Beav.  236;  Cooke  v.  Craw- 
ford, 13  Sim.  91;  In  re  Moravian  Soc,  26  Beav.  101. 

»  Folley  V.  Wontner,  2  Jac.  &  W.  24;  Owen  v.  Owen,  1  Atk.  496;  Foster 
V.  Goree,  4  Ala.  440;  Crosby  v.  Huston,  1  Tex.  203;  Miller  v.  Priddon,  1  De 
G.,  M.  &  G.  339.  [  See  Hughes  v.  Brown,  88  Tenn.  578;  Zimmerman  v. 
Makepeace,  152  Ind.  199.] 

*  Phillips  V.  Ross,  36  Ohio  St.  458. 

*  Gorsuch  V.  Briscoe,  56  Md.  573. 

(a)  New  trustees  are  not  affected  York  it  seems  that  the  appointment 

with  notice  of  incumbrances  on  the  of  a  new  trustee  does  not  preclude 

trust    estate    not    disclosed    in    the  an  administrator  from  denying  the 

trust  documents,  or  by  the  retiring  existence  of  the  trust  as  created  by 

trustee  who  knew  thereof.    Hallows  his  decedent.     Re   Carpenter,    131 

V.  Lloyd,  39  Ch.  D.  686.     In  New  N.  Y.  86. 

490 


CHAP.  IX.]  NUMBER   TO    BE    APPOINTED.  [§  286, 

if  the  instrument  of  trust  is  silent  upon  that  subject.  But  the 
transaction  operates  rather  as  an  estoppel  of  the  cestui  que  trust 
than  as  an  affirmative  transfer  of  power.  Thus,  no  cestui  que 
trust  who  concurs  in  a  l>reach  of  trust  can  aftcn\'ards  call  the 
trustee  to  an  account  for  the  disastrous  consequences;  ^  there- 
fore, if  a  trustee  conveys  the  trust  estate  to  another  person,  and 
appoints  such  other  person  trustee,  and  all  the  cestuis  que  trust 
execute  the  conveyances,  or  otherwise  consent  to  the  transac- 
tion, they  would  be  forever  precluded  from  holding  the  retiring 
trustee  responsible  for  any  delegation  of  his  office,  or  for  any  loss 
that  occurred  afterwards.^  But  the  trustee  must  see  to  it  that 
all  the  cestuis  que  trust  are  parties  to  the  transaction  and  con- 
cur; for,  even  in  the  case  of  a  large  number  of  creditors,  each 
individual  must  act  for  himself,  or  he  is  not  estopped,  and  the 
consent  of  a  majority  cannot  affect  the  rights  of  one  who  did 
not  concur.^  The  trustee  must  also  see  to  it  that  all  the  cestuis 
que  trust  are  sui  juris,  and  not  married  women,  infants,  or 
other  persons  incapable  of  acting,  or  of  no  legal  capacity  to 
consent.  For  if  there  are  such  cestuis  que  trust,  there  can  be  no 
discharge  and  substitution  of  trustees  without  the  sanction  of 
the  court,  in  the  absence  of  a  power  in  the  instrument  of  trust;  * 
or  if  there  may  be  parties  in  interest  not  yet  in  existence,  as  if 
the  trust  is  for  children  not  yet  born,  there  can  be  no  change  of 
trustees  by  consent.  But  a  married  woman  is  considered  sui 
juris  in  respect  to  her  sole  and  separate  estate,  where  there  is 
no  restraint  against  anticipation  or  alienation.^ 

§  286.  If  there  are  two  or  more  trustees  named  in  an  instru- 
ment of  trust  with  power  to  appoint  successors,  and  they  all 
retire  at  the  same  time,  they  ought  not  to  appoint  a  single 
trustee  only  in  the  place  of  two  or  more.®    In  such  a  case  the 

»  Wilkinson  t;.  Parry,  4  Ru88.  276.  *  Ibid. 

'  Colebrook's  Case,  cited  Ex  parte  Hughes,  6  Ves.  622;  Ex  parte  Lacy, 
Id.  628-630,  n. 

*  Cruger  v.  Halliday,  11  Paige,  314. 

»  Hulme  V.  Hulme,  1  Bro.  Ch.  20;  Lewin  on  Trusts,  540,  541  (5th  ed.). 

«  Hulme  V.  Hulme,  2  M.  &  K.  682;  Mass.  Gen.  Hospital  v.  Amory,  12 
Pick.  445. 

491 


§  286.]  NUMBER   TO    BE    APPOINTED.  [CHAP.  IX. 

settlor  has  fixed  the  number  which  he  thinks  necessary  for  the 
proper  administration  and  safety  of  the  trust  fund;  and  if  a 
single  trustee  is  appointed  and  wishes  to  retire,  he  ought  not 
to  appoint  a  plurality  of  trustees,  for  in  such  a  case  he  ought 
not  to  increase  the  machinery  and  expense  of  the  trust  contrary 
to  the  settlor's  intention. "^  But  the  power  may  be  so  drawn 
that  several  may  be  put  in  place  of  one,  or  one  in  the  place  of 
several.  Thus  where  a  testator  appointed  two  trustees,  and  the 
surviving  or  continuing  trustee  or  trustees  were  authorized  to 
appoint  one  or  more  persons  to  be  trustee  or  trustees,  in  the 
room  of  the  trustee  or  trustees  so  dying,  etc.,  the  surviving 
trustee  appointed  two  new  trustees,  and  the  appointment  was 
held  by  the  court  to  be  authorized.^  So,  three  trustees  have 
been  appointed  in  place  of  two,^  and  three  have  been  author- 
ized in  place  of  four,"*  and  two  in  place  of  one,^  and  four  in 
place  of  five.^  In  another  case,  one  trustee  was  appointed  by 
the  court  in  place  of  two.^  (a)  And  if  a  successor  cannot  be  found 

>  Rex  V.  Lexdale,  1  Burr.  448;  Ex  parte  Davis,  2  Y.  &  C.  Ch.  Ca.  468; 
3  Mont.  D.  &  De  G.  304. 

2  D'Almaine  v.  Anderson,  Lewin  on  Trusts,  468  (5th  ed.);  Hill  on 
Trustees,  182. 

3  Meinertzhagen  v.  Davis,  ,1  Col.  C.  C.  335. 

*  Emmet  v.  Clarke,  3  Gif.  32. 

*  Hillman  v.  Westwood,  3  Eq.  R.  142. 

«  Come  V.  Byrom,  Lewin  on  Trusts,  468  (5th  ed.);  Hill  on  Trustees,  181. 

^  Greene  v.  Borland,  4  Met.  330.  In  this  case  the  appointment  was 
assented  to  by  all  parties,  and  great  stress  was  laid  upon  that  fact.  The 
court  might  also  have  said  that  the  proceedings  were  in  a  collateral  matter, 
and  that,  as  long  as  the  appointment  by  a  court  having  jurisdiction  stood 
unreversed,  its  vaUdity  could  not  be  tried  in  another  and  distinct  proceed- 
ing. The  ca.se  of  Greene  v.  Borland  is  not  necessarily  inconsistent  with 
Mass.  Gen.  Hospital  v.  Amory,  12  Pick.  445,  decided  by  the  same  court. 
Dixon  V.  Homer,  12  Cush.  41;  Att.  Gen.  v.  Barbour,  121  Mass.  568;  Ham- 
mond V.  Granger,  128  Mass.  272. 

(a)  When  one  of  several  cotrus-  Cal.  628.  In  re  Chetwynd's  Settle- 
tees  dies  or  resigns  or  is  removed,  it  ment,  [1902]  1  Ch.  692;  In  re  Lees' 
does  not  necessarily  follow  that  the  Settlement,  [1896]  2  Ch.  508.  There 
court  will  appoint  a  new  trustee  to  seems  to  be  no  rule  one  way  or  the 
fill  his  place.  Mallory  v.  Mallory,  other,  but  the  court  will  be  guided 
72  Conn.  494;  Fatjo  v.  Swasey,  111  by  the  apparent  wishes  of  the  crea- 

492 


CHAP.  IX.     FORM  OF  POWER  FOR  NEW  APPOI^^^MENT. 


[§  287. 


to  a  retiring  trustee,  the  court  may  appoint  the  continuing 
trustees  to  be  sole  trustee  or  trustees.^  Where  real  estate  is 
given  in  trust  to  several  persons  and  to  the  survivors  or  sur- 
vivor, if  some  decline  to  act  the  others  have  the  whole  legal 
estate  and  all  the  powers  of  the  trust.^ 

§  287.  The  duties  and  powers  of  trustees  cannot  be  delegated 
to  others,  unless  there  is  express  authority  for  that  purpose  given 
in  the  instrument  creating  the  trust.^    It  follows,  that  a  power 


1  In  re  Stokes  Trusts,  L.  R.  13  Eq.  333. 

2  Long  V.  Long,  62  Md.  33;  see  §  414;  Shockley  v.  Fisher,  75  Mo.  498. 
'  Selden  v.  Vermilyea,  3  Comst.  336;  Wilkinson  v.  Parry,  4  Russ.  272; 

Adams  v.  Paynter,  1  Coll.  532;  Chalmers  t'.  Bradley,  1  J.  &  W.  68;  Swarez 
V.  Pumpelly,  2  Sandf.  Ch.  336;  Wilson  ;;.  Towle,  36  N.  H.  129;  Bayley  v. 
Mansell,  4  Madd.  226;  Winthrop  v.  Att.  Gen.,  128  Mass.  258. 


tor  of  the  trust,  and  more  especially 
by  consideration  of  what  is  best  for 
the  trust.  Where  it  is  apparent  that 
the  creator  of  the  trust  intended 
that  there  should  always  be  a  cer- 
tain number  of  trustees,  the  court 
vnW  usually  appoint  a  new  cotrustee, 
especially  if  the  cestuis  wish  it.  Tar- 
rant V.  Backus,  63  Conn.  277;  Gris- 
wold  V.  Sackett,  21  R.  I.  206.  See 
also  Force  v.  Force,  57  A.  973  (N.  J. 
Eq.  1904).  But  see  Mullanny  v. 
Nangle,  212  lU.  247;  La  Forge  v. 
Biims,  125  111.  App.  527. 

If  the  creator  has  clearly  stipu- 
lated that  the  original  number  of 
trustees  shall  be  maintained,  the 
court,  which  has  jurisdiction  to  ap- 
point new  trustees  would  doubtless 
fulfill  his  \\'ishes  unless  circum- 
stances have  so  changed  that  the 
interests  of  the  trust  clearly  require 
a  reduction  of  the  original  number. 
In  Barker  v.  Barker,  73  N.  H.  353, 
1  L.  R.  A.  (n.  s.)  802,  the  court  re- 
duced the  number  of  trustees  by 
removals  upon  a  showing  that  con- 


ditions had  so  changed  that  the  ad- 
ministration of  the  trust  required 
the  change.  The  rule  is  stated  as 
follows:  "  While  a  court  of  equity  is 
reluctant  to  change  the  number  of 
trustees  from  that  designated  by  the 
creator  of  the  trust,  yet  it  seems  to 
be  in  accordance  with  reason  and 
authority  that  it  may  do  so  when, 
by  reason  of  changed  conditions  in 
the  estate,  the  number  designated  by 
the  creator  has  become  excessive  or 
insufficient,  and  it  is  necessarj'  to  re- 
duce or  increase  the  number  in  order 
to  effectuate  the  execution  of  the 
trust."  See  also  note  in  1  L.  R.  A. 
(n.  s.)  802. 

Under  the  English  Tru.stce'8  Act 
of  1S93,  the  court  has  power  to  in- 
crease the  original  number  of  trus- 
tees and  to  appoint  a  separate  set  of 
trustees  for  any  property  held  on  a 
trust  distinct  from  the  trusts  relat- 
ing to  other  property.  See  also 
Judicial  Trustees  .\ct,  1S96  (59  and 
60  Vict.  c.  35);  Douglas  v.  Bolam, 
[1900]  2  Ch.  749. 

493 


§  287.]  FORM  OF   POWER  FOR  NEW  APPOINTMENT.  [CHAP.  IX. 

to  appoint  new  trustees  can  seldom  or  never  exist,  except  in 
express  trusts  created  by  deed  or  will.  The  person  who  creates 
the  trust  may  mould  it  into  whatever  form  he  pleases:  he  may 
therefore  determine  in  what  manner,  in  what  event,  and  upon 
what  condition  the  original  trustees  may  retire  and  new  trustees 
may  be  substituted.  All  this  is  fully  within  his  power;  and  he 
can  make  any  legal  provisions  which  he  may  think  proper  for 
the  continuation  and  succession  of  trustees  during  the  contin- 
uance of  the  trust.^  (a)  And  vacancies  cannot  be  filled  in  any 
other  way  than  that  named  by  the  grantor,  unless  in  conse- 
quence of  a  statutory  provision,  or  of  a  failure  on  the  part  of 
the  remaining  trustees  to  perform  the  duty  of  filling  the  va- 
cancy, in  which  case  equity  will  interfere.^  (6)      The  power  to 


•  Whelan  v.  Reilly,  3  W.  Va.  597.  The  testator  may  authorize  the 
trustee  appointed  by  him  to  appoint  his  successor  by  will.  Abbott,  Pet'r,  55 
Me.  580.  While  the  settlor  may  make  such  provision  as  he  may  think  best 
for  filling  vacancies,  as  a  general  proposition,  yet  it  has  been  held  that  a 
power  reserved  to  an  assignor  in  a  deed  of  trust  for  creditors,  to  appoint 
new  trustees  to  fill  vacancies  occurring  in  the  board,  was  void  as  inter- 
fering with  the  rights  of  creditors  Planck  v.  Schermerhom,  3  Barb.  Ch. 
644;  Robins  v.  Embry,  1  Sm.  &  M.  Ch.  207. 

*  Golder  v.  Bressler,  105  111.  419. 

(a)  The  creator  of  the  trust  may  ent  provision.     Trustee  Act,  1893, 

give  the  power  of  appointing  new  §  10. 

trustees  to  the  cestuis  or  to  part  of  A  power  given  to  beneficiaries  or 

them.     March  t;.  Romare,  116  Fed.  to  other  persons  to  appoint  a  trustee 

355;  Reichert  i;.  Mo.  &  111.  Coal  Co.,  does    not    relieve    their    appointee 

231  111.  238.    But  apart  from  statute  from  the  statutory  requirement  of 

provisions  the  cestuis  have  no  power  giving  a  bond,  and  the  appointors 

to  appoint  new  trustees,  unless  the  have  no  power  to  dispense  with  the 

trust  instrument  provides  that  they  bond.    Butler  v.  Taggart's  Trustee, 

shall  have  such  power.    Whitehead  86  S.  W.  541  (Ky.  1905). 

V.  Whitehead,  142  Ala.  163;  Grundy  (b)  Where  the  trust  instrument 

V.  Drye,  104  Ky.  825.  gives  the  power  to  appoint  new  trus- 

In    England,    statutes    give    the  tees    to    two    beneficiaries    acting 

power  of  filling  vacancies  to  surviv-  jointly,  and  joint  action  is  impossible 

ing  or  continuing  trustees  or  to  per-  because  of  irreconcilable  differences, 

sonal  representatives  of  the  last  sur-  the  court  will  appoint  on  appUcation 

viving  or  continuing  trustee  unless  of  one  with  notice  to  the  other.  Cone 

the  trust  instrument  makes  a  differ-  v.  Cone,  61  S.  C.  512.    To  the  same 

494 


CHAP.  IX.]  FORM  OF  POWER  FOR  NEW  APPOINTMENT.  [§  2S8. 

appoint  new  trustees  in  place  of  the  original  ones  can  only  he 
given  by  the  author  and  creator  of  the  trust.  For,  in  cases 
where  courts  are  called  upon  to  appoint  trustees,  authority  to 
appoint  successors  will  not  be  given,  but  recourse  must  be  had 
to  the  courts  toties  quoiies}  There  is,  however,  an  exception  to 
this  rule  in  case  of  charitable  trusts;  for,  in  such  cases,  to  save 
costs,  and  for  convenience,  courts  of  equity  will  not  only  ap- 
point new  trustees  to  fill  vacancies,  but  they  will  sanction  a 
scheme  for  the  administration  of  the  charity,  which  provides 
for  the  appointment  and  succession  of  trustees  without  a  con- 
tinual recourse  to  legal  proceedings.- 

§  288.  Every  well-drawn  instrument,  creating  trusts  intended 
to  continue  for  any  considerable  time,  should  contain  authority 
and  power  for  any  of  the  trustees  to  relinquish  the  trust,  as  well 
as  provisions  for  filling  vacancies  occasioned  by  resignation, 
death,  or  incapacity.  Such  provisions  save  the  cost  and  trouble 
of  constant  applications  to  courts.  In  framing  these  powers, 
great  care  should  be  taken  to  provide  for  every  possible  con- 
tingency in  which  a  resignation  or  new  appointment  may 
become  convenient  or  necessary.  The  power  should  clearly 
express  the  cases  in  which  new  trustees  may  be  appointed,  and 
embrace  every  event  which  can  render  such  an  appointment 
necessary  or  desirable,  as  the  death  of  all,  any  one,  or  more  of 

'  Wilson  V.  Towle,  36  N.  H.  129;  Oglander  v.  Oglander,  2  De  G.  &  Sm. 
381;  Holder  v.  Durbin,  11  Beav.  594;  Bowles  v.  Weeks,  14  Sim.  591;  Bayley 
V.  Mansell,  4  Madd.  226;  Southwell  v.  Ward,  Taml.  314.  A  different 
practice  was  followed  in  Joyce  v.  Joyce,  2  Moll.  276;  Sampayo  v.  Gould,  12 
Sim.  426,  and  White  v.  White,  5  Beav.  221;  but  these  cases  are  not 
authorities  now.    See  Brown  v.  Brown,  3  Y.  &  C.  395. 

2  Att.  Gen.  v.  Winchelsea,  3  Bro.  Ch.  373;  Att.  Gen.  v.  Shore,  1  M.  & 
Cr.  394;  12  Sim.  426. 

effect  see  Griswold  v.  Sackett,  21  R.  beneficiary,  where  there  was  nothing 

I.  206.     But  where  it  was  provided  to  show  that  the  cestuis  could  not 

that  the  court  should  appoint  "sub-  agree  upon  some  other  proper  per- 

ject  to  the  approval  of  parties  inter-  son.     Cole  v.  Watertown,  119  Wis. 

ested,"  the  court  had  no  power  to  133. 
appoint  a  person  objected  to  by  one 

495 


§  288.]  FORM  OF  POWER  FOR  NEW  APPOINTMENT.    [CHAP.  IX. 

the  original  or  substituted  trustees,  their  absence  from  the 
country  or  State,  their  wish  to  resign,  their  original  refusal  to 
accept,  and  their  future  incapacity  or  unfitness  to  discharge  the 
duties;  the  instrument  should  also  point  out  clearly  and  by 
whom  and  in  what  manner  the  new  appointments  are  to  be 
made.  Such  provisions  are  extremely  convenient,  and  save 
much  perplexity,  expense,  and  trouble;  and  where  a  settlement 
is  to  be  drawn  up  under  articles,  by  the  direction  of  the  court, 
it  will  order  such  provisions  to  be  inserted  as  SiTejust  and  reason- 
able}    Where  it  is  necessary  to  act  under  the  powers  thus  given 

1  Lindow  v.  Fleetwood,  6  Sim.  152;  Brewster  v.  Angell,  1  J.  &  W.  628; 
Sampayo  v.  Gould,  12  Sim.  426;  Belmont  v.  O'Brien,  2  Kern.  394.  The 
following  form  is  approved  by  both  Mr.  Lewin  and  Mr.  Hill  as  a  proper 
power  for  the  appointment  of  new  trustees :  — 

"Provided  always,  and  it  is  hereby  further  declared,  that  if  the  trustees 
hereby  appointed,  or  any  of  them,  or  any  future  trustees  or  trustee  hereof, 
shall  die  (either  before  or  after  their  or  his  acceptance  of  the  trusts  thereof), 
go  to  reside  abroad,  desire  to  be  discharged  from,  renounce,  decline,  or 
become  incapable  or  unfit  to  act  in  the  trusts  of  these  presents,  while  the 
same  trusts  or  any  of  them  shall  be  subsisting,  then,  and  in  every  or  any 
such  cases,  and  so  often  as  the  same  shall  happen,  it  shall  be  lawful  for  the 
said  {tke  cestuis  que  trust  [if  any]  for  life),  or  the  survivors  of  them,  by  any 
writLng  or  writings,  under  their,  his,  or  her  hands  or  hand,  attested  by 
two  or  more  witnesses,  and  after  the  decease  of  such  survivor,  then  for 
the  surviving  or  continuing  trustees  or  trustee  hereof,  or  the  executors  or 
administrators  of  the  then  last  acting  trustee  (whether  such  surviving 
trustees  or  trustee,  or  executors  or  administrators,  respectively,  shall  be 
willing  to  act  in  other  respects  or  not),  by  any  writing  or  writings,  under 
their  or  his  hands  or  hand,  attested  by  two  or  more  witnesses,  to  nominate 
and  substitute  any  person  or  persons  to  be  trustee  or  trustees  hereof  in 
the  place  of  the  trustee  or  trustees  so  dying,  going  to  reside  abroad,  desiring 
to  be  discharged,  renouncing,  declining,  or  becoming  incapable  or  unfit 
to  act  as  aforesaid.  And  that,  so  often  as  any  new  trustee  or  trustees  hereof 
shall  be  appointed  as  aforesaid,  all  the  hereditaments,  &c.,  which  shall, 
for  the  time  being,  be  holden  upon  the  trusts  hereof,  shall  be  thereupon 
conveyed,  assigned,  and  transferred  respectively,  in  such  manner  that  the 
same  may  become  legally  and  effectually  vested  in  the  acting  trustees  hereof 
for  the  time  being,  to  and  for  the  same  uses,  and  upon  the  same  trusts,  and 
with  and  subject  to  the  same  powers  and  provisions  as  are  herein  declared 
and  contained  of  and  concerning  the  same  hereditaments  and  premises 
respectively,  or  such  of  the  same  uses,  trusts,  powers,  and  provisions  as 
shall  then  be  subsisting  or  incapable  of  taking  effect. 

"And  that  every  new  trustee,  to  be  from  time  to  time  appointed  as 

496 


CHAP.  IX.]       CARE    IN    APPOINTING    NEW   TRUSTEES.  [§  289. 

in  the  instrument  of  trust,  it  is  of  the  utmost  consequence  that 
there  should  be  an  exact  compliance  with  the  power  and  author- 
ity as  given.  For  if  the  circumstances  do  not  justify  or  demand 
a  new  appointment,  as  contemplated  in  the  instrument  of  trust, 
or  if  there  is  any  irregularity  as  to  the  persons  by  whom  the  new 
appointment  is  made,  or  as  to  the  manner  in  which  it  is  made, 
the  retiring  trustee  will  still  be  liable  for  any  breaches  of  trust 
which  may  be  committed,  and  the  new  trustee  will  be  incapable 
of  exercising  any  legal  authority  over  the  trust  property,  and  will 
be  a  trustee  only  de  son  tort,  if  he  interfere;  and  any  purchaser 
of  the  trust  property  may  find  his  title  utterly  worthless.^  (a) 
The  retiring  trustee  should  be  careful  not  to  part  with  the 
control  of  the  fund  before  the  new  trustee  has  been  actually 
appointed  and  qualified;  for  if  he  transfer  it  into  the  name  of 
the  intended  trustee,  and  by  some  accident  the  appointment  is 
not  completed,  the  old  trustee  still  remains  answerable  for  the 
fund.^ 

§  289.  These  powers  of  appointing  successors  are  frequently 
matters  of  personal  confidence  reposed  in  the  trustees  appointed 
by  the  settlor,  and  they  are  always  matters  of  general  trust  and 
confidence  to  be  strictly  executed.  The  court  will  not  prevent 
the  exercise  of  discretion  given  for  appointment,  but  will  see 
that  it  is  used  to  subserve  the  purposes  of  its  creation.^  Being 
powers  given  to  third  persons  over  the  property  of  others,  they 

aforesaid,  shall  henceforth  be  competent  in  all  things  to  act  in  the  execu- 
tion of  the  trusts  hereof,  as  fully  and  effectually,  and  with  all  the  same 
powers  and  authorities  to  all  purposes  whatsoever,  as  if  he  had  hereby  been 
originally  appointed  a  trustee  in  the  place  of  the  trustee  to  whom  he  shall, 
whether  immediately  or  otherwise,  succeed." 

1  Adams  v.  Paynter,  1  Col.  .532;  Walker  v.  Brungard,  13  Sm.  &  M.  723. 

2  Pearce  v.  Pearce,  22  Beav.  248. 
'  Bailey  v.  Bailey,  2  Del.  Ch.  95. 

(a)  Thus  where  the  trust  instru-  seal,"    an    appointment   not    under 

ment  provided  that  the  beneficiaries  seal  is  ineffective.    Sharpley  v.  Plant, 

might  in  case  of  vacancy  appoint  a  79  Miss.  175. 
new  trustee  "under  their  hand  and 

VOL.  I.  —  32  497 


§  290.]  POWER   OF   APPOINTING   SUCCESSORS.        [CHAP.  IX. 

are  construed  with  great  strictness,  and  a  great  variety  of  deci- 
sions have  been  made  upon  the  various  forms  in  which  the  power 
has  been  expressed.  Questions  have  arisen :  (1)  As  to  the  time, 
occasion,  or  event  when  a  new  appointment  may  be  made; 
(2)  As  to  the  person  or  persons  by  whom  the  appointment  may 
be  made;  (3)  As  to  the  persons  who  may  be  appointed;  (4)  As 
to  the  number  of  persons  who  may  be  appointed;  (5)  As  to  the 
manner  of  making  the  new  appointment. 

§  290.  It  should  always  be  carefully  considered  whether  the 
circumstances  or  events  are  such  as  the  settlor  intended  for  the 
retirement  of  one  or  more  of  the  trustees  appointed  by  him,  and 
the  substitution  of  new  trustees;  thus  in  a  case  where  the  power 
provided  that,  "in  case  either  of  the  trustees,  the  said  A.  and 
B.,  shall  happen  to  die,  or  desire  to  be  discharged  from,  or 
neglect  or  refuse  or  become  incapable  to  act  in  the  trust,  it  shall 
be  lawful  for  the  survivor  or  survivors  of  the  trustees  so  acting, 
or  the  executors  or  administrators  of  the  last  surviving  trustee, 
by  any  writing,  &c.,  to  nominate  a  new  trustee,"  both  the 
trustees  declining  to  act,  they  executed  a  conveyance  to  two 
other  persons,  as  an  appointment  of  them  as  new  trustees  under 
the  power;  and  it  was  held  that  the  power  was  not  well  executed, 
that  the  word  "survivor"  referred  to  the  trustee  "continuing 
to  act,"  that  it  was  the  intention  of  the  testator  that  in  case  of 
the  death,  refusal,  or  incapacity  of  one  of  his  trustees,  the  remain- 
ing one  who  had  been  named  by  him,  and  who  was  the  object 
of  his  confidence,  should  have  the  power  of  associating  with 
himself  some  other  person,  and  that  the  event  of  both  declining 
at  the  same  time  was  not  provided  for.^  Where  a  settlement 
upon  a  chapel  contained  a  power  for  the  appointment  of  new 
trustees  upon  the  desertion  or  removal  of  any  existing  trustee, 
Lord  Eldon  held  that  the  case  of  a  trustee,  who  left  the  trust 
on  account  of  its  being  converted  by  the  other  trustees  to  pur- 
poses different  and  distinct  from  the  intention  of  the  settlor, 

'  Sharp  V.  Sharp,  2  B.  &  Ad.  404;  Guion  v.  Pickett,  42  Miss.  77.     [  See 
In  re  Wheeler,  [1896]  1  Ch.  315;  In  re  Stamford,  id.  288.] 
498 


CHAP.  IX.]    WHEN    THE    POWER   MAY    BE    EXERCISED.  [§  291. 

was  an  event  not  provided  for.'  And  so  where  cestui^  que  trust 
were  to  appoint  a  trustee  upon  the  refusal  or  neglect  of  the 
others  to  act,  it  was  held  that  they  could  not  appoint  upon  the 
death  of  one  of  them.'  But  generally  where  the  i)ower  to 
appoint  new  trustees  is  given  to  the  survivor  of  several  trustees, 
it  may  be  legally  exercised  by  the  continuing  trustee  upon  the 
resignation  or  refusal  of  the  others  to  act.^ 

§  291.  In  some  earlier  cases,  it  was  held  that  where  a  power 
was  given  to  the  surviving  trustee  or  trustees  to  appoint  new 
trustees  in  case  of  the  death  of  either  of  their  cotrustees,  it  did 
not  authorize  an  appointment  to  fill  a  vacancy  caused  by  the 
death  of  trustees  during  the  lifetime  of  the  testator,  upon  the 
ground  that  persons  dying  in  the  lifetime  of  the  testator  had 
never  filled  the  character  of  trustees  so  as  to  come  within  the 
terms  of  the  power ;  *  but  these  are  overruled  by  the  later  cases, 
and  it  may  be  considered  as  settled  that  the  surviving  trustee 
or  trustees  may  fill  vacancies  caused  by  the  death  of  persons 

'  Att.  Gen.  V.  Pearson,  3  Mer.  412.  In  Morris  v.  Preston,  7  Ves.  547, 
power  was  given  to  a  husband  and  wife,  or  the  survivor,  with  the  consent 
of  the  cotrustees  or  trustees,  to  appoint  any  new  trustee  or  trustees,  and  upon 
such  appointment  the  surviving  cotrustees  should  convey  the  estate,  so 
that  the  surviving  trustee  or  trustees,  and  the  new  trustee  or  trustees, 
might  be  jointly  concerned  in  the  trusts  in  the  same  manner  as  such  sur- 
viving trustee  and  the  person  so  dying  would  have  been  in  case  he  were 
living.  No  new  appointment  was  made  till  after  the  death  of  both  the 
original  trustees.  The  new  appointees  having  made  a  sale,  the  purchaser 
objected  to  the  title  on  the  ground  of  the  invalidity  of  their  appointment 
under  the  power;  but  the  objection  was  waived  without  argument.  Mr. 
Sugden  regrets  that  the  opinion  of  the  court  was  not  taken.  2  Sugd.  on 
Powers,  529.  He  has,  however,  never  since  acted  on  the  doctrine.  As 
where  a  similar  power  was  given,  to  a  tenant  for  life,  of  appointing  new 
trustees,  one  trustee  died  and  the  other  became  bankrupt,  and  it  was  ob- 
jected that  the  power  of  appointment  was  gone.  Sir  Edward  Sugden  ruled 
to  the  contrary.    Re  Roche,  1  Conn.  &  Laws,  306;  2  Dr.  &  War.  287. 

»  Guion  V.  Pickett,  42  Miss.  77. 

*  Sharp  V.  Sharp,  2  B.  &  Ad.  405;  Eaton  v.  Smith,  2  Beav.  236;  Travis 
V.  Illingworth,  2  Dr.  &  Sm.  344;  Cooke  v.  Crawford,  13  Sim.  91;  Hawkins 
r.  Kemp,  3  East,  410. 

*  Walsh  V.  Gladstone,  14  Sim.  5 ;  Winter  v.  Rudge,  15  Sim.  576. 

499 


§  292.]  WHEN    THE    POWER    MAY    BE    EXERCISED.    [CHAP.  IX. 

nominated  by  the  testator,  whether  they  die  in  his  lifetime  or 
afterwards.^  So  if  the  continuing  trustee  or  trustees  are  to 
appoint  upon  the  refusing  or  declining  of  any  of  the  original 
trustees,  they  may  appoint  upon  the  disclaimer  of  any  one  or 
more;  ^  and  so  a  payment  of  the  trust  fund  into  court,  under 
an  order  or  permission  to  that  effect,  is  a  refusing  or  declining 
by  the  trustee  that  authorizes  the  exercise  of  the  power.^ 

§  292.  If  the  settlement  provides  that  a  new  appointment 
may  be  made  on  either  of  the  trustees  becoming  unfit,  the 
power  may  be  exercised  if  one  of  them  becomes  bankrupt;  ^  but 
if  the  word  is  "incapable"  without  the  word  "unfit,"  a  new 
appointment  cannot  be  made,  for  the  word  "incapable"  means 
personal  incapacity  and  not  pecuniary  embarrassment,^  and  a 
bankrupt  who  had  some  time  before  obtained  a  first-class 
certificate  of  discharge  was  not  regarded  as  coming  within  the 
term  "unfit."  ^  But  where  a  trustee  of  property  in  London  had 
been  domiciled  in  New  York  for  twenty  years,  he  was  declared 
incapable  without  the  meaning  of  the  word.^    AVhere  a  power 

'  Lonsdale  v.  Beckett,  4  De  G.  &  Sm.  73;  In  re  Hadley's  Trust,  5  De 
G.   &  Sm.  67;  9  Eng.  L.  &  Eq.  67;  Noble  v.  Meymott,  14  Beav.  477. 

2  Re  Roche,  1  Conn.  &  Laws,  306;  Walsh  v.  Gladstone,  14  Sim.  2;  Mit- 
chell V.  Nixon,  1  Ir.  Eq.  155;  Cook  v.  Ingoldsby,  2  Ir.  Eq.  375;  Travis  v. 
Iliingworth,  2  Dr.  &  Sm.  344. 

5  Re  William's  Settlement,  4  K.  &  J.  87. 

*  In  re  Roche,  1  Conn.  &  Laws.  308;  2  Dr.  &  War.  287. 

5  Re  Watt's  Settlement,  9  Hare,  106;  Tmiier  v.  Maule,  5  Eng.  L.  &  Eq. 
222;  15  Jur.  761.  In  re  Bignold's  Settlement,  L.  R.  7  Ch.  223;  Re  Blan- 
chard,  3  De  G.,  F.  &  J.  131.  A  statute  in  New  York  provides  that  ad- 
ministration, &c.,  shaU  not  be  granted  to  any  person  who  shall  be  judged 
incompetent  by  the  surrogate  to  execute  the  duties  of  the  trust  by  reason  of 
drunkenness,  iinyrovidence,  or  want  of  understanding.  Under  this  statute 
it  was  held  that  mere  moral  turpitude  does  not  per  se  disqualify,  but  that 
professional  gambling  was  such  evidence  of  improvidence  as  prima  facie  to 
disqualify.  Coope  v.  Lowerre,  1  Barb.  Ch.  45;  McMahon  v.  Harrison, 
2  Seld.  443. 

«  Re  Bridgman,  1  Dr.  &  Sm.  164. 

'  Mennard  v.  Welford,  1  Sm.  &  Gif.  426.  The  opposite  doctrine  waa 
previously  held  in  Withington  v.  Withington,  16  Sim.  104;  O'Reilly  v. 
Alderson,  8  Hare,  101. 

500 


CHAP.  rX.]  BY  WHOM  THE  POWER  MAT  BE  EXERCISED.  [§  294. 

declared  that,  "if  the  trustees  were  not  deemed  suitable  and 
sufficient  to  act  as  trustees  by  the  cestui  que  trust,  he  might 
remove  them,  it  was  held  to  he  a  matter  of  discretion  in  the 
beneficiary  to  remove  the  trustees  or  not."  ^ 

§  293.  \Miere  a  suit  is  already  pending  in  court  for  the 
administration  of  the  trust,  the  donees  of  the  power  to  appoint 
cannot  exercise  it  without  first  obtaining  the  court's  approval 
of  the  person  proposed.^  When  it  is  desired  to  change  the 
trustees  during  the  pendency  of  the  suit,  a  motion  must  be  made, 
and  such  motion  is  referred  to  a  master  to  report  upon  the 
person  proposed.  The  master  is  to  regard  the  power  of  appoint- 
ment; but  he  is  not  bound  to  approve  the  proposed  person.^  If 
an  appointment  is  made,  however,  by  old  trustees,  it  is  not 
contempt,  nor  is  it  altogether  void;  but  it  puts  the  burden  upon 
those  making  the  appointment  of  proving,  by  the  strictest  evi- 
dence, that  it  was  just  and  proper.  If  they  fail  in  such  proof, 
the  act  will  be  declared  null  and  void.'*  So  if  the  trustee  or 
other  person  having  power  to  appoint  a  new  trustee  is  a  lunatic, 
the  court  must  appoint.^ 

§  294.  It  will  at  once  be  seen  that  the  power  of  appointing 
other  trustees  can  be  exercised  only  by  those  to  whom  it  is 
expressly  given.  Therefore,  if  the  power  is  not  given  to  any 
one,  new  trustees  can  be  appointed  only  by  the  court,®  except 
where,  as  in  England,  statutory  provisions  may  change  this 

1  Walker  v.  Brungard,  13  Sm.  &  Mar.  758. 

2  Millard  v.  Eyre,  2  Ves.  Jr.  94;  Webb  v.  Shaftesbury,  7  Ves.  480;  Peat- 
field  V.  Bonn,  17  Beav.  552;  Kennedy  v.  Turnley,  6  Ir.  Eq.  399;  Att.  Gen. 

V.  Clack,  1  Beav.  467;  Middleton  v.  Reay,  7  Hare,  106; v.  Roberts, 

IJ.  &  W.  251. 

»  Webb  V.  Shaftesbury,  7  Ves.  487;  Middleton  v.  Reay,  7  Hare,  106. 

*  Cape  V.  Bent,  3  Hare,  249;  Att.  Gen.  v.  Qack,  1  Beav.  467;  Baker  «;. 
Lee,  8  H.  L.  Ca.  495. 

»  In  re  Sparrow,  1  L.  R.  5  Ch.  662;  In  re  White,  L.  R.  5  Ch.  698;  In  re 
Cuming,  id.  72;  In  re  Heaphy,  18  W.  R.  1070;  In  re  NichoU,  id.  416. 

'  Wilson  V.  Towle,  36  N.  H.  129;  Pierce  v.  Weaver,  65  Tex.  44,  citing 
the  text. 

501 


§  294.]         BY  WHOM  THE  POWER  MAY  BE  EXERCISED.   [CHAP.  IX. 

rule.^  So  if  the  power  be  given  to  particular  persons  by  name, 
without  saying  more,  or  adding  words  of  survivorship,  it  must 
be  exercised  jointly,  and  upon  the  death  of  one  of  them  the 
power  will  be  gone.^  But  if  a  power  be  given  to  a  class  consist- 
ing of  several  persons,  as  to  "my  trustees,"  "my  sons,"  or  "my 
brothers,"  and  not  to  individuals  by  their  proper  names,  the 
authority  will  exist  in  the  class,  so  long  as  the  plural  number 
remains,  although  it  may  have  been  reduced  in  number  by  the 
death  or  resignation  of  some;'  and  where  a  power  is  given  to 
"my  executors"  as  a  class,  it  may  be  exercised  by  a  single  sur- 
viving executor.^  A  power  to  be  exercised  by  the  survivor 
of  two  persons  cannot  be  executed  by  the  one  dying  first,^  nor 
even  by  the  two  acting  together  during  the  lives  of  both.^  So 
a  power  given  to  the  surviving  or  continuing  trustee  to  appoint 
a  cotrustee,  if  either  of  the  two  decline  to  act,  does  not  author- 
ize an  appointment  if  both  decline.^  So  the  power  of  appoint- 
ment cannot  be  executed  by  heirs,  personal  representatives,  or 
assigns  of  any  trustee,  unless  the  authority  is  expressly  given 
in  the  instrument  of  trust. ^  In  these,  as  in  all  other  cases,  the 
authority  will  be  strictly  confined  to  those  persons  who  answer 
the  precise  description.  Thus  a  power  given  to  a  trustee,  his 
heirs,  executors,  or  administrators,  cannot  be  executed  by  a 
devisee  or  assignee  of  the  trustee.®    It  is,  however,  well  estab- 

>  Act  44  and  45  Vict.  c.  41,  [  Trustee  Act  1893,  §  10.] 

«  Co.  Litt.  113  a;  1  Sugd.  Pow.  141. 

3  Gartland  v.  Mayott,  2  Vera.  105;  Eq.  Cas.  Ab.  202;  2  Freem.  105; 
Dyer  177  a;  Co.  Litt.  112  b;  Byam  v.  Byam,  10  Beav.  .58;  Belmont  v.  O'Brien, 
2  Kem.  394;  1  Sugd.  Pow.  144;  McKim  v.  Handy,  4  Md.  Ch.  230. 

*  1  Sugd.  Pow.  244;  Davoue  v.  Fanning,  2  Johns.  Ch.  252. 
»  Bishop  of  Oxford  v.  Leighton,  2  Vera.  376. 

8  McAdam  v.  Logan,  3  Bro.  Ch.  320. 
7  Sharp  V.  Sharp,  2  B.  &  Ad.  405. 

*  Bradford  v.  Belfield,  2  Sim.  264;  Eaton  v.  Smith,  2  Beav.  236;  Davoue 
V.  Fanning,  2  Johns.  Ch.  252;  Titley  v.  Wolstenholme,  7  Beav.  424;  Gran- 
ville V.  McNeale,  7  Hare,  156;  Hall  t;.  May,  3  Kay  &  J.  585;  Cooke  v.  Craw- 
ford, 13  Sim.  91. 

»  Bradford  v.  Belfield,  2  Sim.  264;  Cole  f.  Wade,  16  Ves.  47;  Cape  v. 
Bent,  3  Hare,  245;  Ackleston  v.  Heap,  1  De  G.  &  Sm.  640;  McKim  v.  Handy, 
4  Md.  Ch.  230;  Mortimer  v.  Ireland,  6  Hare,  196. 

502 


CHAP.  IX. j    BY  WHOM  THE  POWER  MAY  BE  EXERCISED.        [§  296. 

lished,  that  a  power  given  to  a  surviving  trustee  may  be  executed 
by  a  continuing  or  acting  trustee,  although  a  cotrustee  who 
disclaimed  is  still  living.' 

§  295.  The  number  of  parties  undertaking  to  execute  a  power 
must  come  within  the  exact  description  given  of  the  number  of 
those  who  are  to  execute  it;  thus,  if  a  power  is  given  to  be 
exercised  by  a  certain  specified  number,  or  when  they  are 
reduced  to  a  certain  number,  it  cannot  be  exercised  by  a  less 
number,  and  is  gone  if  not  exercised  before  the  number  is 
reduced  below  the  number  which  is  named  for  its  execution.^ 
But  the  power  may  be  executed  before  the  trustees  are  reduced 
to  the  lowest  number  specified,  as  where  a  conveyance  to 
twenty-five  trustees  for  a  chapel  directed  that  when,  by  death 
or  otherwise,  the  number  should  be  reduced  to  fifteen,  a  major- 
ity of  those  remaining  should  make  up  the  number  to  twenty- 
five.  The  number  was  reduced  to  seventeen;  and  twelve,  the 
others  dissenting,  elected  eight  new  trustees,  and  it  was  held  a 
good  appointment  under  the  power.' 

§  29G.  A  married  woman  may  exercise  the  power  of  appoint- 
ing new  trustees,  if  such  power  is  expressly  given  to  her,  as  she 
may  exercise  any  other  power  given  to  her  in  an  instrument  of 
trust;'*  and  she  may  appoint  her  husband  trustee;^  but  an 
infant  cannot  exercise  such  power  unless  it  is  simply  collateral.^ 
The  power  may  be  given  to  a  firm,  their  agents  and  assigns,^ 
but  not  to  a  court  that  has  no  authority  by  law  to  act  in  the 
appointment  of  trustees.  A  grantor  cannot  confer  new  powers 
on  a  court  though  it  may  on  the  judge  as  an  individual.^    But 

'  Lane  v.  Debenham,  11  Hare,  188;  Eaton  v.  Smith,  2  Beav.  236;  Sharp 
V.  Sharp,  2  B.  &  A.  405. 

»  Att.  Gen.  v.  Floyer,  2  Vem.  748;  Att.  Gen.  v.  Litchfield,  5  Ves.  825. 

'  Dupleix  V.  Roe,  1  Anat.  86. 

*  Ante,  §  49. 

»  Tweedy  v.  Urquhart,  30  Ga.  446. 

«  Ante,  §  52. 

^  Leggett  t;.  Grimmett,  36  Ark.  498. 

»  Leman  v.  Sherman,  117  111.  657;  18  Brad.  (111.)  368. 

503 


i^  297.]  COURTS    WILL    NOT    INTERFERE.  [CHAP.  IX. 

if  the  court  is  one  that  by  law  may  act  in  the  appointment  of 
trustees,  the  selection  of  the  grantor  will  be  effective.^ 

§  297.  The  appointment  may  be  by  parol  unless  the  power 
otherwise  provides.^  Where  the  appointment  of  new  trustees 
is  given  to  the  discretion  of  the  acting  trustees,  courts  of  equity 
will  not  interfere  to  control  the  exercise  of  the  discretion  if  the 
old  trustees  act  in  good  faith^  and  if  the  administration  of  the 
trust  is  not  already  in  the  hands  of  or  before  the  court  by  a 
pending  suit.'*  Thus  the  old  trustees  in  a  case  for  the  exercise 
of  their  discretion  may  appoint  any  suitable  person.  The 
inquiry  in  such  cases  is  not  whether  the  person  proposed  is  the 
most  suitable,  but  whether  he  is  suitable.^  It  is  generally  the 
duty,  however,  of  trustees  to  appoint  new  trustees,  who  are 
agreeable  to  the  cestuis  que  trust,  and  who  would  administer  the 
fund  for  their  interest ;  to  this  end  it  is  generally  the  duty  of  the 

1  Morrison  v.  Kelly,  22  111.  610. 

2  Leggett  V.  Grimmett,  36  Ark.  498. 

»  Bowditch  i;.  Bannelos,  1  Gray,  220;  Hodgson's  Settlement,  9  Hare, 
118.  [  See  also  March  v.  Romare,  116  Fed.  355;  Reichert  v.  Mo.  &  111.  Coal 
Co.,  231  111.  238.]  In  Bowditch  v.  Bannelos,  above  cited,  Ch.  J.  Shaw  said: 
"  But  when  we  say  that  she  (the  cestui  que  trust)  had  power  at  her  pleasure 
to  appoint,  we  do  not  mean  to  say  that  this  was  an  arbitrary  power  to  ap- 
point a  person  unfit  or  unsuitable  to  execute  such  a  trust,  as  a  minor,  an 
idiot,  a  pauper,  or  person  incapable  of  performing  the  duties.  It  must  be 
a  person  of  full  age,  sufficient  mental  and  legal  capacity,  and  in  all  respects 
capable  of  performing  the  required  duties.  In  case  of  trust  property  of 
real  and  personal  estate,  we  are  not  prepared  to  say  whether  an  aUen,  not 
naturalized,  and  not  capable  by  law  to  hold  real  estate,  would  or  would 
not  be  a  suitable  or  legal  appointment.  We  think  the  power  was  not  ex- 
hausted by  the  appointment  of  the  first  substitute,  but  that  the  same  power 
existed,  on  every  resignation,  to  appoint  a  new  trustee,  pursuant  to  the 
original  trusts;  but  that  this  power,  by  necessary  implication,  was  limited 
to  the  appointment  of  a  person  legally  capable  of  executing  it."  Whether 
the  nomination  of  her  husband,  on  account  of  the  conjugal  relation,  would 
have  been  incompatible  with  the  scope  of  the  whole  instrument,  and  would 
be  a  valid  objection,  or  whether  the  fact  that  another  appointee  was  a  for- 
eigner having  no  domicile  in  the  United  States,  an  alien  not  natm-alized, 
would  be  a  valid  objection,  the  court  did  not  decide,  because  the  nomina- 
tions were  withdrawn. 

*  Ante,  §  293.  »  Ante,  §  278. 

504 


CHAP.  IX. J  COURTS    WILL    NOT    INTERFERE.  [§  297. 

trustees  to  consult  the  cestuis  que  trust  as  to  the  appointment.' 
And  a  new  appointee  ought  to  consult  the  cestui^  que  trust  before 
accepting  the  office.^  An  appointment  for  the  mere  purpose  of 
having  a  particular  solicitor  employed  in  the  management  of 
the  trust  ought  not  to  be  allowed.^  Generally,  the  new  trus- 
tees appointed  under  a  power  should  be  amenable  to  the  juris- 
diction of  the  court;  but  where  the  cestuis  que  trust  resides 
abroad,  it  may  be  proper  to  appoint  trustees  in  the  same  juris- 
diction with  the  beneficiary.''  Though  if  the  court  is  called 
upon  to  exercise  the  power,  it  will  not  appoint  trustees  out  of 
its  jurisdiction.^  (a)  Nor  is  the  appointment  of  one  of  the 
cestuis  que  trust  proper,  as  each  of  the  cestui  que  trust  has  a 
right  to  a  disinterested  and  imyartial  trustee.^  This  rule  prob- 
ably only  affects  the  parties  to  the  trust;  for  if  a  cestui  que  trust 
should  be  appointed,  and  should  sell  the  estate  under  a  power 
of  sale,  the  purchaser  would  be  protected."  Cestuis  que  trust 
are  not  absolutely  incapacitated  to  take  the  trusts,  and  courts 
themselves  sometimes  appoint  them;^  but  it  is  not  generally 
desirable.  So,  near  relationship  is  not  a  disqualification;  but 
it  is  almost  always  better  to  have  a  capable  person  not  inti- 
mately connected  with  the  cestuis  que  trust.^    Nor  should  the 

»  O'Reilly  v.  Aldereon,  8  Hare,  101;  Marshall  i-.  Sladden,  7  Hare,  428; 
Peatfield  v.  Benn,  17  Beav.  522;  Nagle's  Est.,  52  Penn.  St.  154. 

«  Ibid. 

3  Marshall  v.  Sladden,  7  Hare,  428. 

*  Meinertzhagen  v.  Davis,  1  Col.  C.  C.  335;  Ex  parte  Tunno,  1  Bail. 
Eq.  395. 

6  Guibert's  Trust,  13  Eng.  L.  &  Eq.  372.  But  see  Ex  parte  Tunno,  1 
Bail.  Eq.  395. 

«  Passingham  v.  Sherborne,  9  Beav.  424. 

'  Reid  V.  Reid,  30  Beav.  38S. 

8  Ex  parte  Glutton,  17  Jur.  9S8;  21  Eng.  L.  &  Eq.  186;  Ex  parte  Cony- 
beare's  Settlement,  1  W.  R.  458;  Make  v.  Norrie,  21  Hun,  (N.  Y.)  128. 
[Robertson  v.  De  Brulatour,  188  N.  Y.  301;  Woodbridge  v.  Bockes,  59 
N.  Y.  App.  Div.  503;  Nellis  v.  Rickard,  133  Gal.  617.    See  supra,  §  59.] 

»  Wilding  V.  Bolder,  21  Beav.  222,  where  the  husband  of  a  cestui  que 

(a)  But   there    is   no    invariable      164.    See  also  La  Forge  v.  Binns,  125 
rule  against  appointment  of  a  non-     111.  App.  527. 
resident.    Dodge  r.  Dodge,  109  Md. 

505 


§  297.] 


COURTS   WILL    NOT    INTERFERE. 


[chap.  IX. 


donee  of  a  power  to  appoint  nominate  himself,  for  trustees 
cannot  even  pay  over  the  assets  to  one  of  their  own  number.^  (a) 
It  is  said,  however,  that  if  a  trust  with  power  of  appoint- 
ment is  committed  to  trustees  and  the  survivor  of  them,  his 
executors  or  administrators,  and  the  trustees  all  die,  the  ap- 
pointment is  in  the  executor  of  the  survivor;  and,  as  the  instru- 
ment of  trust  declares  him  to  be  a  proper  person  to  execute 
the  trust,  he  may  appoint  himself  under  the  power.  Mr.  Lewin, 
however,  says  that  "the  exercise  of  every  power  should  be 
regulated  by  the  circumstances  as  they  stand  at  the  time,  and 
that  the  limitation  to  executors  cannot  dispense  with  the  dis- 
cretion to  be  applied  afterwards."  ^ 

trust  was  appointed  trustee,  the  court  required  him  to  undertake  to  apply 
for  the  appointment  of  a  new  trustee  in  case  he  became  sole  trustee,  18 
W.  R.  416;21L.T.  (n.  s.)  781. 

1  j;.  Walker,  5  Russ.  7;  Stickney  v.  Sewell,  1  M.  &  C.  14;  Westover 

i;.  Chapman,  1  Col.  C.  C.  177. 

*  Lewin  on  Trusts,  472  (5th  Lond.  ed.). 


(a)  It  has  been  held  in  England 
that  where  power  of  appointing  new 
trustees  was  vested  in  the  executors 
of  the  last  acting  trustee,  an  appoint- 
ment of  one  of  their  number  to  be 
one  of  three  trustees  was  vahd. 
Montefiore  v.  Guedalla,  [1903]  2 
Ch.  723.    But  an  opinion  has  been 


expressed  in  other  cases  that  such 
an  appointment  is  improper,  even  if 
the  terms  of  the  power  do  not  ex- 
clude the  appointors.  See  In  re 
Sampson,  [1906]  1  Ch.  435;  In  re 
Skeats'  Settlement,  42  Ch.  Div.  522; 
In  re  Newen,  [1894]  2  Ch.  297. 


506 


CHAP.  X.]  ESTATE    OF   THE    TRUSTEE.  [§  298. 


CHAPTER  X. 

NATURE,  EXTENT,  AND  DURATION  OF  THE  ESTATE  TAKEN  BY 

TRUSTEES. 

§  298.    Where  trustees  take  and  hold  no  estate,  although  an  express  gift  is 

made  to  them.    Statute  of  uses. 
§  299.    Effect  of  the  statute  of  uses  upon  conveyancing  in  the  several 

States. 
§  300.    Effect  of  the  statute  in  the  rise  of  trusts. 
§§  301,  302.   Rules  of  construction  which  give  rise  to  trusts. 
§  303.  The  word  "seized." 

§  304.  The  primary  use  must  be  in  the  trustee  to  raise  a  trust. 

§§  305,  306.   Personal  property  not  within  the  statute. 
§§  307,  308.  Where  the  statute  executes  trusts  as  uses,  and  where  it  does 

not. 
§  309.  Where  a  charge  upon  an  estate  will  vest  an  estate  in  trustees, 

and  where  not. 
§  310.  Where  the  trust  is  for  the  sole  use  of  a  married  woman. 

§  311.  Trusts  of  personalty  are  not  executed  by  the  statute. 

§  312.    The  statute  only  executes  the  exact  estate  given  to  the  trustee;  but 
the  trustee  may  take  an  estate  commensurate  with  the  purposes 
of  the  trust  where  it  is  unexecuted  by  the  statute.    Rules. 
§§  313,  314.  Courts  may  imply  an  estate  in  the  trustee  where  none  is  given. 
§§  315,  316.    May  enlarge  the  estate  of  the  trustee  for  the  purposes  of  the 

trust. 
§  317.    Illustrations,  explanations,  and  modifications  of  the  rule. 
§§  318,  319.    Rule  in  respect  to  personal  estate. 

§  320.    Distinctions  between  deeds  and  wills  in  England  and  the  United 
States. 

§  298.  It  may  happen  that  although  words  of  express  trust 
are  used  in  the  grant  or  bequest  of  an  estate  to  a  trustee,  yet 
no  estate  vests  or  remains  in  the  trustee.  This  may  be  because 
only  a  'power  is  given  and  no  estate,  as  where  a  testator  simply 
directs  his  executor  to  sell  certain  property  and  apply  the  pro- 
ceeds to  certain  purposes  instead  of  granting  the  property  to 
the  executor  or  trustee  to  sell,  &c.,  or  because  the  statute  of 

507 


§  298.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

uses  executes  the  legal  estate  at  once  in  the  cestui  que  trust}  Thus, 
if  A.  grants  or  bequeaths  land  to  B.  and  his  heirs,  in  trust  for 
C.  and  his  heirs,  the  trustee,  B.,  will  take  nothing  in  the  land, 
but  the  legal  title,  as  well  as  the  beneficial  use,  will  vest  imme- 
diately in  C.;^  for  the  statute  of  uses,^  so  called,  executes  the 
possession  and  the  legal  title  in  the  same  person  to  whom  the 
beneficial  interest  is  given.  As  stated  in  previous  sections,^  a 
large  part  of  the  land  in  England  was  at  one  time  held  to  uses. 
The  legal  title  was  in  one  person,  but  upon  the  trust  and  confi- 
dence that  such  person  would  apply  it  to  the  use  of  some  person 
named,  or  that  such  legal  owner  would  permit  some  other 
person  to  have  the  possession,  use,  and  income  of  the  estate. 
This  system,  originating  partly  in  fraud  of  the  law,  and  partly 
in  the  necessities  and  convenience  of  the  subject,  became  at 
last  the  source  of  great  abuses.  To  remedy  these  abuses,  the 
statute  of  uses  was  enacted.^    This  statute  executes  the  use  by 

1  West  V.  Fitz,  109  111.  425. 

2  Austin  V.  Taylor,  1  Eden,  361;  Williams  v.  Walters,  14  M.  &  W.  166; 
Robinson  v.  Grey,  9  East,  1;  Chapman  v.  Blissett,  Cas.  t.  Talbot,  150; 
Broughton  v.  Langley,  2  Salk.  150;  2  Ld.  Raym.  873;  Thatcher  v.  Omans, 
3  Pick.  521;  Upham  v.  Vamey,  15  N.  H.  466;  Kinch  v.  Ward,  2  Sim.  &  St. 
409,  and  see  Doe  v.  Biggs,  2  Taunt.  109;  Shapland  v.  Smith,  1  Bro.  Ch.  75, 
and  notes;  Boyer  v.  Cockerell,  3  Kan.  282;  Witham  v.  Brooner,  63  111.  344. 

3  27  Henry  VIII.  c.  10,  §  1. 
*  Ante,  §§  3,  4. 

^  Ante,  §§  5,  6,  7.  And  see  the  preamble  of  the  statute.  The  first  sec- 
tion of  the  statute  was  as  follows:  "That  where  any  person  or  persons  stand 
or  be  seized,  or  at  any  time  hereafter  shall  happen  to  be  seized  of  and  in 
any  honors,  castles,  manors,  lands,  tenements,  rents,  services,  reversions, 
remainders,  or  other  hereditaments,  to  the  use,  confidence,  or  trust  of  any 
other  person  or  persons,  or  of  any  body  politic,  by  reason  of  any  bargain, 
sale,  feoffment,  fine,  recovery,  covenant,  contract,  agreement,  will,  or  other- 
wise, by  any  manner  of  means,  whatsoever  it  be;  that  in  every  such  case,  all 
and  every  such  person  and  persons,  and  bodies  politic  that  have  or  hereafter 
shall  have  any  such  use,  confidence,  or  trust  in  fee-simple,  fee-tail,  for  term 
of  life,  or  for  years,  or  otherwise,  or  any  use,  confidence,  or  trust  in  remainder 
or  reverter,  shall  from  henceforth  stand  and  be  seized,  deemed,  and  ad- 
judged, in  lawful  seizin,  estate,  and  possession,  of  and  in  the  same  honors, 
castles,  manors,  lands,  tenements,  rents,  sendees,  reversions,  remainders, 
and  hereditaments,  with  their  appurtenances,  to  all  intents,  constructions, 
and  purposes,  in  the  law  of  and  in  such  like  estates  as  they  had  or  shall  have 

508 


CHAP.  X.]  STATUTE    OF    USES.  [§  299. 

conveying  the  possession  to  the  use,  and  transferring  the  use 
into  possession,  tliereby  making  the  cestui  que  use  complete 
owner  of  the  estate,  as  well  at  law  as  in  equity.  It  does  not 
abolish  the  conveyance  to  uses,  but  only  annihilates  the  inter- 
vening estate,  and  turns  the  interest  of  the  cestui  que  use  into  a 
legal  instead  of  an  equitable  estate.'  A  use,  a  trust,  and  a  confix 
deiice  is  one  and  the  same  thing,  and  if  an  estate  is  conveyed  to 
one  person  for  the  use  of,  or  upon,  a  trust  for  another  and  noth- 
ing more  is  said,  the  statute  immediately  transfers  the  legal 
estate  to  the  use,  and  no  trust  is  created,  although  express 
words  of  trust  are  used.^  So  absolute  is  the  statute  that  it  will 
operate  upon  all  conveyances  in  the  words  above  stated,  al- 
though it  was  the  plain  intention  of  the  settlor  that  the  estate 
should  vest  and  remain  in  the  first  donee;  for  the  intention 
of  the  citizen  cannot  control  express  enactments  of  the  legis- 
lature,^ or  positive  rules  of  property. 

§  299.  The  statute  of  uses  is  in  force  in  most  of  the  United 
States,''  but  where  the  statute  is  not  in  force  either  by  adoption 

in  use,  trust,  or  confidence  of  or  in  the  same;  and  that  the  estate,  title,  right, 
and  possession  that  was  in  such  person  or  persons  that  were  or  hereafter 
shall  be  seized  of  any  lands,  tenements,  or  hereditaments,  to  the  use,  con- 
fidence, or  trust  of  any  such  person  or  persons,  or  of  any  body  politic,  be 
from  henceforth  clearly  deemed  and  adjudged  to  be  in  him  or  them,  that 
have,  or  hereafter  shall  have,  such  use,  confidence,  or  trust  after  such 
quality,  manner,  form,  and  condition  as  they  had  before,  in,  or  to  the  use, 
confidence,  or  trust  that  was  in  them."    Saund.  on  Uses,  70-82. 

»  Eustace  i;.  Seamen,  Cro.  Jac.  696;  2  Black.  Com.  333,  338;  Thatcher 
V.  Omans,  3  Pick.  529;  Hut  chins  v.  Heywood,  50  N.  H.  495. 

»  Terry  v.  Collier,  11  East,  377;  Right  v.  Smith,  12  East,  454;  Brough- 
ton  V.  Langley,  2  Salk.  679;  Ease  t-.  Howard,  Pr.  Ch.  338,  345;  Hammer- 
ston's  Case,  Dyer,  166  a,  note;  Ramsay  v.  Marsh,  2  McCord,  252;  Moore 
V.  Shultz,  13  Penn.  St.  98;  Jackson  t'.  Fish,  10  Johns.  456;  Parks  v.  Parks, 
9  Paige,  107. 

^  Carwardine  v.  Carwardine,  1  Eden,  36;  Gregory  r.  Henderson,  4  Taunt. 
772.  In  this  case  the  intent  of  the  testator  was  loosely  talked  of,  but  it 
was  an  active  trust,  as  pointed  out  by  Heath,  J.  Doe  v.  Collier,  11  East, 
377;  Shapland  v.  Smith,  1  Bro.  Ch.  75;  1  Sugd.  Ven.  309,  314. 

*  4  Kent,  Com.  299;  1  Green.  Cru.  tit.  11,  Use,  c.  3,  §  3,  note.  [See 
Kay  V.  Scates,  78  Am.  Dec.  399,  and  note.] 

509 


§  299.]  ESTATE    OF   THE   TRUSTEE.  [CBLA.P.  X. 

or  by  re-enactment,  and  even  where  it  is  expressly  repealed  and 
a  form  of  deed  is  enacted,  a  knowledge  of  the  law  of  uses  is 
necessary  in  order  to  understand  and  apply  the  common  forms 
of  conveyance.^  The  statute  of  uses,  and  the  doctrines  it  estab- 
lished, are  so  interwoven  with  the  history  of  every  American 
State,  and  with  the  growth  of  its  jurisprudence  in  regard  to 
real  estate,  that  the  law  of  tenures  is  necessarily  interpreted  in 
America  by  the  precedents  established  under  the  statute;  ^  and 
in  this  branch  of  the  law,  as  in  all  others,  it  is  impossible  to 
obtain  a  clear  perception  of  its  present  state,  without  a  full 
knowledge  of  the  successive  steps  by  which  the  latest  develop- 
ment has  been  reached.  The  application  of  the  statute  has 
been  very  much  modified  in  many  of  the  States,  but  the  general 
idea  is  still  acted  upon.^    Mr.  Washburn  remarks,  that  it  is 

1  Walk.  Am.  Law,  311;  Helfensteine  v.  Garrard,  7  Ohio,  275;  2  Washb. 
on  Real  Prop.  152. 

«  4  Kent,  Com.  299-301. 

'  In  Maine,  a  person  may  convey  land  by  deed  acknowledged  and  re- 
corded. Rev.  Stat.  1857,  c.  73,  §  1.  [  Rev.  Stat.  (1903),  c.  75,  §  1.]  And  a 
deed  may  be  any  species  of  conveyance,  not  plainly  repugnant  in  terms, 
and  necessary  to  give  effect  to  the  intention  of  the  parties.  Emery  v.  Chase, 
5  Maine,  235.  And  the  statute  of  uses  is  in  force.  Shapleigh  v.  Pilsbury,  1 
Maine,  271;  Emery  v.  Chase,  5  id.  232;  Webster  v.  Cooper,  14  How.  496; 
Morden  v.  Chase,  32  Maine,  329. 

In  New  Hampshire,  the  form  in  which  lands  may  be  conveyed  is  fixed 
by  statute.  Rev.  Stat.  But  this  does  not  exclude  other  known  forms  of 
conveyance  at  common  law,  and  the  statute  of  uses  is  in  full  force.  Exeter 
V.  Odiorne,  1  N.  H.  232;  Chamberlain  v.  Crane,  id.  64;  French  v.  French,  3 
id.  234;  Upham  v.  Vamey,  15  id.  462;  Hayes  v.  Tabor,  41  id.  526;  Bell  v. 
Scammon,  15  id.  394;  Pritchard  v.  Brown,  4  id.  397;  Dennett  v.  Dennett, 
40  id.  498;  Hutchins  v.  Heywood,  50  id.  496.  [  Fellows  v.  Ripley,  69  N.  H. 
410.] 

In  Vermont,  there  is  a  similar  legislation  as  to  the  form  of  conveyances; 
but  Chief -Justice  Redfield  held  that  the  English  statute  of  uses  was  not 
in  force,  for  the  reason  that  their  court  of  equity  could  carry  out  the  in- 
tention of  parties  without  the  help  of  the  statute.  Gorham  v.  Daniels, 
23  Vt.  600;  Sherman  j;.  Dodge,  28  id.  26.  Mr.  Justice  Thompson,  of  the 
United  States  court  for  the  district,  held  the  contrary.  Soc.  &c.  v.  Hart- 
land,  2  Paine,  C.  C.  .536.    [  See  Atkins  v.  Atkins,  70  Vt.  565.] 

In  Massachusetts,  a  deed  acknowleged  and  recorded  conveys  land  with- 
out any  other  ceremony.  Gen.  Stat.  1860,  c.  89,  §  1.  [  Rev.  Laws  (1902),  c. 
127,  §  1.]    The  form  of  deed  in  general  use  gives,  grants,  bargains,  sells  and 

510 


CHAP.  X.j  STATUTE    OF    USES.  [§  299. 

not  a  fair  inference  that  the  doctrine  of  uses  would  be  inappli- 
cable in  any  State  where  they  are  not  declared  not  to  exist, 

conveys,  upon  a  conBideration,  limitinK  the  estate  to  the  grantee  and  his 
heirs  to  their  use.  These  words  prevent  a  resulting  use  in  the  grantor;  and 
it  is  a  conveyance  at  common  law,  since  the  grantee  and  the  cestui  que  use  is 
the  same  person.  But  if,  for  any  reason,  it  is  necessary,  in  order  to  give 
effect  to  the  conveyance,  to  construe  it  as  operating  under  the  statute  of 
uses,  the  court  will  do  so.  Cox  v.  Edwards,  14  Mass.  492;  Marshall  t;.  Fish, 
6  Mass.  24;  Hunt  t;.  Hunt,  14  Pick.  374;  Wallis  v.  Wallis,  4  Mass.  135;  Pray 
V.  Pierce,  7  Mass.  381;  Russell  v.  Coffin,  8  Pick.  143;  Blood  i;.  Blood,  id.  80; 
Parker  V.  Nichols,  7  id.  Ill;  Gale  v.  Cobum,  18  id.  397;  Brewer  i'.  Hardy,  22 
id.  376;  Thatcher  v.  Omans,  3  id.  522;  Norton  t;.  Leonard,  12  id.  157;  New- 
hall  V.  Wheeler,  7  Mass.  189;  Chapin  j;.Univer.  Soc,  8  Gray,  580;  Baptist 
Soc.  V.  Hazen,  100  Mass.  322;  Durant  v.  Ritchie,  4  Mason,  45;  Northampton 
Bank  v.  Whiting,  12  Mass.  104;  Johnson  t'.  Johnson,  7  Allen,  197.  [See 
Carr  v.  Richardson,  157  Mass.  576;  Dakin  v.  Savage,  172  Mass.  23.] 

In  Rhode  Island,  deeds  of  bargain  and  sale,  lease  and  release,  and  cove- 
nants to  stand  seized,  are  recognized  by  statute.  Rev.  Stat.  (1857),  p.  335. 
[  Gen.  Laws  (1909),  c.  253,  §  11.]  And  the  statute  of  uses  would  seem  to  be 
in  partial  force.  1  Lomax,  Dig.  188;  Nightingale  v.  Hidden,  7  R.  I.  132. 
[Fish  V.  Prior,  16  R.  I.  566;  Sullivan  v.  Chambers,  18  R.  I.  799;  Ames, 
Petitioner,  22  R.  I.  54.] 

In  Connecticut,  the  act  of  acknowledging  and  recording  a  deed  is  held 
equivalent  to  livery  of  seizin.  Barrett  v.  French,  1  Conn.  354.  But  the 
statute  of  uses  is  held  to  be  part  of  its  common  law.  Bacon  v.  Taylor,  Kirb. 
368;  Barrett  v.  French,  1  Conn.  354;  Bryan  v.  Bradley,  16  Conn.  474. 

In  New  York,  previous  to  1827,  the  English  statute  of  uses  was  in  full 
force.  Jackson  v.  Myers,  3  Johns.  388;  Jackson  v.  Fish,  10  id.  456;  JacksoB 
V.  Root,  18  id.  79;  Jackson  v.  Cary,  16  id.  302;  Jackson  v.  Dunsbagh,  1  Johns. 
Cas.  91;  Jackson  v.  Cadwell,  1  Cow.  622.  [  See  Brown  t'.  Wadsworth,  168 
N.  Y.  225.]  After  that  year,  the  rules  of  the  common  law  were  repealed; 
all  uses  and  trusts  were  abolished,  except  such  as  were  expressly  authorized. 
Every  interest  in  land  is  declared  to  be  a  legal  right,  and  cognizable  in  a 
court  of  law  except  where  it  is  otherwise  provided.  A  conveyance  by  grant, 
assignment,  or  devise  is  substituted  for  a  conveyance  to  uses,  and  future 
interests  in  lands  may  be  conveyed  by  grant.  3  Rev.  Stat.  15  (5th  ed.);  4 
Kent,  300.  It  has,  however,  been  determined  that  if  land  is  granted  to  one 
in  fee  in  trust  for  another,  the  cestui  que  trust  takes  the  estate  absolutely, 
but  subject,  however,  to  such  incumbrances  as  the  trustee  made  upon  the 
estate  at  the  time  of  the  conveyance,  as  if  the  trustee  should  give  back  a 
mortgage  for  the  purchase-money,  it  would  be  held  to  be  one  transaction. 
Rawson  v.  Lampman,  1  Seld.  456.  Nor  have  these  statutes  any  application 
to  securities  by  mortgage.  King  v.  Merchants'  Exchange  Co.,  1  Seld.  547. 
[  The  New  York  statutes  expressly  provide  against  passive  trusts  of  real 
estate  and  that  title  shall  vest  at  once  in  the  person  beneficially  entitled. 

511 


§  299.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

either  because  no  case  has  arisen  in  the  courts  of  the  State  to 
test  the  question,  or  because  a  form  of  deed  not  known  under 

IV  Consol.  Laws  (1909),  p.  3389,  §  91  et  seq.  See  Wendt  v.  Walsh,  164 
N.  Y.  154;  Jacoby  v.  Jacoby,  188  N.  Y.  124;  Adams  v.  Adams,  100  N.  Y.  S. 
145,  114  App.  Div.  390.] 

In  New  Jersey,  the  statute  of  uses  is  substantially  re-enacted.  Den  v. 
Crawford,  3  Halst.  107;  Prince  v.  Sisson,  13  N.  J.  168.  [  N.  J.  Gen.  Stat. 
(1895),p.  877,  §119.] 

In  Pennsylvania,  a  statute  declares  all  deeds  in  a  prescribed  form  equiv- 
alent to  a  feoffment  with  livery  of  seizin  at  common  law,  and  the  statute  of 
uses  is  also  in  full  force.  Opinion  of  the  Judges,  3  Binn,  599;  Welt  v.  Franklin, 
1  Binn,  502;  Ashhurst  v.  Given,  5  Wat.  &  S.  323;  Sprague  v.  Woods,  4  id. 
192;  O'Kinson  v.  Patterson,  1  id.  395;  Hurst  v.  McNeil,  1  Wash.  C.  C.  70; 
Franciscus  v.  Reigart,  4  Watts,  118.  Indeed,  at  one  time  the  Pennsylvania 
courts  carried  the  application  of  the  statute  to  an  unsual  extent,  and  held 
that  equitable  were  converted  into  legal  estates  in  all  cases  except  active 
trusts,  and  even  then  if  the  purposes  of  the  trust  did  not  furnish  a  legitimate 
reason  for  not  executing  the  trust  in  the  beneficJary.  Kuhn  v.  Newman, 
26  Penn.  St.  227;  Whichcote  v.  Lyle,  28  id.  73;  Bush's  App.,  33  id.  85;  Kay 
V.  Scates,  37  id.  31.  But  these  cases  were  overruled,  and  the  law  restored 
to  its  former  condition,  in  Barnett's  App.,  46  Penn.  St.  392;  Shankland'a 
App.,  47  id.  113;  Earp's  App.,  75  id.  119;  Deibert's  App.,  78  id.  296. 

In  Delaware,  the  statute  provides  that  lands  may  be  transferred  by 
deed  without  livery,  and  that  the  legal  estate  shall  accompany  the  use,  and 
pass  with  it.    "Rev.  Code  (1852),  p.  266.    [  Rev.  Code  (1893),  c.  83,  §  1.] 

In  Maryland,  the  English  statute  of  uses  is  the  foundation  of  their  con- 
veyances, and  their  rules  of  construction  of  it  are  nearly  similar  to  the  Eng- 
lish rules.  Lewis  v.  Beall,  4  Harr.  &  McH.  488;  Mason  v.  Smallwood,  id. 
484;  Matthews  v.  Ward,  10  Gill  &  J.  443;  Cheney  v.  Watkins,  1  Harr.  & 
J.  527;  West  v.  Biscoe,  6  id.  465;  Calvert  v.  Eden,  2  Harr.  &  McH.  331. 
[  Rogers  t).  Sisters  of  Charity,  97  Md.  550;  Numsen  v.  Lyon,  87  Md.  31; 
Hooper  v.  Feigner,  80  Md.  262;  Graham  v.  Whitridge,  99  Md.  248.] 

In  Virginia,  the  statute  of  uses  was  a  part  of  the  colonial  law;  but  it 
was  repealed  in  1792.  Afterwards,  in  1819,  and  in  Rev.  Code  (1849), 
p.  502  [  Va.  Code  (1904),  §  2426],  a  partial  substitute  was  adopted,  by  which 
the  possession  was  transferred  to  the  use  only  in  cases  of  deeds  of  bargain 
and  sale,  lease  and  release,  and  deeds  operating  by  way  of  covenant  to 
stand  seized  to  uses.  If  uses  or  trusts  are  raised  by  any  other  form  of  con- 
veyance, as  by  devise,  they  remain,  as  before  the  statute  of  Henry  VIII., 
mere  equitable  estates,  not  cognizable  by  courts  of  law.  Bass  v.  Scott,  2 
Leigh,  359;  1  Lomax,  Dig.  188;  2  Matt.  Dig.  34;  Rowletts  v.  Daniel,  4  Munf. 
473;  Tabb  v.  Baird,  3  Call,  475;  Duvall  v.  Bibb,  id.  362.  [The  court  of  West 
Virginia,  interpreting  a  statute  worded  precisely  the  same,  held  that  it  was 
designed  only  to  aid  those  conveyances  which  could  not  pass  the  legal  title 
without  its  aid  and  that  a  deed  of  bargain  and  sale  to  A.,  trustee  for  B.,  did 

512 


CHAP.  X.]  STATUTE    OF    USES.  [§  299. 

the  statute  of  uses  may  have  been  declared  by  the  statute  of  a 
State  sufficient  to  convey  lands. ^  It  is  true  that  Lord  I  lard- 
not  pass  the  legal  title  to  B.  Blake  v.  O'Neal,  63  W.  Va.  483;  W.  Va.  Code 
(1906),  §  3033.] 

In  North  Carolina,  the  statute  ia  similar  to  the  statute  of  Virginia.  Rev. 
Code  (1854),  p.  270;  Den  v.  Hanks,  5  Ired.  30;  Smith  v.  Lookabill,  76  N.  C. 
465.  [  Code  of  N.  C.  (1908),  §  1584.  But  it  is  not  applied  in  the  same  way 
as  the  Virginia  statute.  See  Smith  v.  Proctor,  139  N.  C.  314;  Webb  t;. 
Borden,  145  N.  C.  188;  Kirkman  v.  Holland,  139  N.  C.  185;  Wilson 
V.  Lcary,  120  N.  C.  90.] 

In  South  Carolina,  the  statute  of  uses  was  re-enacted  in  terms.  2  Stat, 
at  Large,  p.  467;  Ramsay  v.  Marsh,  2  McCord,  252;  Redfem  v.  Middleton, 
Rice,  464;  Kinsler  v.  Clark,  1  Rich.  170;  Chancellor  v.  Windham,  id.  161; 
Laurens  v.  Jenney,  1  Spears,  356;  McNish  v.  Guerard,  4  Strob.  74.  [  S.  C. 
Civ.  Code  (1902),  §  2580;  Uzzell  v.  Horn,  71  S.  C.  426;  Young  v.  McNeill, 
78  S.  C.  143;  Foster  v.  Glover,  46  S.  C.  522;  Holmes  v.  Pickett,  51  S.  C.  271.] 

In  Georgia,  the  form  of  deed  in  general  use  is  that  of  bargain  and  sale, 
which  operates  under  the  statute  of  uses.  Adams  v.  Guerard,  29  Ga.  676. 
[  Ga.  Code  (1895),  §  3157,  provides  that  in  an  executed  trust  for  the  benefit 
of  a  person  capable  of  taking  and  managing  property  in  his  own  right,  the 
legal  title  is  merged  immediately  in  the  equitable  interest,  and  the  perfect 
legal  title  vests  in  the  cestui.  See  also  §§  3158  and  3149;  Trammell  v.  Inman, 
115  Ga.  874;  Thompson  v.  Sanders,  118  Ga.  928;  Taylor  v.  Brown,  112  Ga. 
758.] 

In  Florida,  there  is  a  statute  similar  to  the  statute  of  Virginia,  and  the 
statute  of  uses  is  in  partial  force.  Thompson's  Dig.,  p.  178,  §  4;  1  Lomax, 
Dig.  188.     [  Fla.  Gen.  Stat.  (1906),  §  2455.] 

In  Alabama,  the  statute  of  uses  is  part  of  the  law  of  the  State.  Horton 
V.  Sledge,  29  Ala.  478;  You  v.  Flinn,  34  Ala.  411.  [Ala.  Civ.  Code  (1907), 
§  3408,  provides  that  when  a  use,  trust,  or  confidence  is  declared  of  any  land 
or  any  charge  upon  the  same  for  the  mere  benefit  of  a  third  person  the  legal 
title  vests  in  the  latter  and  not  in  the  trustee.  Huntington  v.  Spear,  131 
Ala.  414;  Berry  v.  Bromberg,  142  Ala.  339;  Everett  v.  Jordan,  152  Ala.  259; 
Jordan  v.  Phillips,  126  Ala.  561;  Edwards  t-.  Bender,  121  Ala.  77.] 

In  Mississippi,  there  is  a  statute  similar  to  the  statute  of  Virginia.    How 
&  Hutch.  Dig.,  p.  349.     [  See  Miss.  Code  (1906),  §  2762.] 

In  Louisiana,  conveyances  originated  under  the  civil  law,  or  the  code 
of  France. 

In  Texas,  a  statute  recognizes  deeds  of  bargain  and  sale,  which  operate 
under  the  statute  of  uses. 

In  Arkansas,  the  mode  of  conveyance  is  by  deeds  of  bargain  and  sale, 
and  of  course  the  statute  of  uses  must  be  a  part  of  their  law. 

In  Tennessee,  the  statute  of  uses  [  seems  to  be  in  force.    Hughes  i'.  Loan 


1  2  Washburn  on  Real  Property,  154. 
vol.  I. —  33  513 


§  299.]  ESTATE    OF   THE   TRUSTEE.  [CHAP.  X. 

wicke  is  reported  to  have  said,  that  the  statute  of  uses  had  no 
other  effect  than  to  add  at  most  three  words  to  a  conveyance;* 

Assoc,  46  S.  W.  362  (Tenn.  Ch.  App.  1897).     See  Temple  v.  Ferguson,  110 
Tenn.  84;  Hart  v.  Bayliss,  97  Tenn.  72.] 

The  statute  of  Kentucky  is  in  nearly  the  same  words  as  the  statute  of 
Virginia.    Rev.  Stat.,  p.  279  (ed.  1860).    [  Ky.  Stat.  (1909),  §  2057.] 

In  Ohio,  the  statute  of  uses  was  never  in  force,  and  if  trusts  or  uses  are 
raised  by  the  form  of  conveyance  they  remain  unexecuted,  and  mere 
equitable  estates,  cegnizable  only  in  courts  of  equity.  Williams  v.  Pres- 
byterian Church,  1  Ohio  St.  497;  Helfensteine  v.  Garrard,  7  Ham.  276; 
Foster  v.  Dennison,  9  Ohio,  124;  Walker  Am.  Law,  124;  Thompson  v. 
Gibson,  2  Ohio,  439. 

In  Indiana,  the  statute  of  uses  is  enacted  in  substance.  Rev.  Stat. 
(1843),  p.  447;  Linville  v.  Golding,  11  Ind.  374;  Nelson  v.  Davis,  35  Ind. 
474.  [  The  statute  at  present  in  force  goes  further  than  the  statute  of  uses. 
Ind.  Stat.  Bums  (1908),  §  4024;  Myers  t;.  Jackson,  135  Ind.  136;  Stroup 
i;.  Stroup,  140  Ind.  179.] 

In  Illinois,  [the  statute  of  uses  is  substantially  re-enacted.  Kurd's 
Rev.  Stat.  (1909),  c.  30,  §  3.] 

In  Michigan,  the  laws  are  similar  to  the  statutes  of  New  York.  2  Compt. 
Laws  (1857),  p.  824;  Ready  v.  Kearsley,  14  Mich.  228.  [Mich.  Comp. 
Laws  (1897),  §§  8829-8852.] 

In  Missouri,  the  statute  of  uses  is  re-enacted  in  substance.  Rev.  Stat. 
(1845),  p.  218;  Guest  v.  Farley,  19  Mo.  147.  [Mo.  Annot.  Stat.  (1906), 
§  4589;  Comwell  v.  Orton,  126  Mo.  355.] 

In  Iowa,  uses  are  recognized,  and  deeds  may  operate  under  the  statute 
of  uses.    Pierson  v.  Armstrong,  1  Iowa,  282. 

In  Wisconsin,  the  statute  is  very  similar  to  the  statute  of  New  York, 
and  all  uses  and  trusts  are  abolished  except  those  specially  provided  for. 
Rev.  Stat.  (1858),  p.  529.  [  Wis.  Stat.  (1898),  §§  2071-2094.  See  Perkins 
V.  Burlington  Land  and  Imp.  Co.,  112  Wis.  509;  McWilliams  v.  Gough,  116 
Wis.  576.] 

In  Minnesota,  [the  statute  law  is  the  same  as  in  New  York.  Minn.  Rev. 
Laws  (1905),  §§  3240-3262;  Thompson  v.  Conant,  52  Minn.  208.] 

In  California,  conveyances  originated  under  the  old  Spanish  law,  and 
probably  the  statute  of  uses  has  little  or  no  influence  upon  the  law  of  the 
State.  [  It  has  been  held  not  to  be  part  of  the  law  of  the  State.  Estate  of 
Fair,  132  Cal.  523,  533  et  seg.;  Estate  of  Dixon,  143  Cal.  511.  See  also  Cal. 
Civ.  Code,  §  847  et  seq.] 

[Kansas  Gen.  Stat.  (1909), §  9706,  pro\ndes  that  "A  conveyance  or  devise 
of  lands  to  a  trustee  whose  title  is  nominal  only,  and  who  has  no  power  of 
disposition  or  management  of  such  lands,  is  void  as  to  the  trustee,  and 
shall  be  deemed  a  direct  conveyance  or  devise  to  the  beneficiary."    It  has 


'  Hopkins  v.  Hopkins,  1  Atk.  591. 

514 


CHAP.  X.]  CONSTRUCTION    OF   THE   STATUTE.  [§  300, 

Mr.  Kent  thinks  this  rather  too  strongly  expressed,  and  says 
that  the  doctrine  of  the  statute  has  insinuated  itself  deeply  and 
thoroughly  into  every  branch  of  the  jurisprudence  of  real  prop- 
erty.^ It  seems  to  have  been  the  intention  of  the  statutes  of 
the  various  States  to  supply  the  want  of  livery  of  seizin,  and 
to  make  all  deeds,  or  other  writings  executed  with  certain 
formalities,  equivalent  to  the  old  feoffments;  therefore,  any  old 
and  well-established  rule  of  conveyancing  ought  not  to  be  con- 
sidered as  abolished,  in  the  absence  of  express  provisions  to 
that  effect. 

§  300.  The  statute  of  uses  at  the  time  when  it  was  passed 
had  an  immense  effect  upon  the  tenures  of  the  realm.  Many 
interests  in  land  which  had  been  merely  equitable,  and  cog- 
nizable only  according  to  the  rules  of  equity,  became  at  once 
legal  interests,  cognizable  in  courts  of  common  law.  Many  per- 
sons who  were  seized  of  estates  to  uses,  and  who  only  could  sue 
or  be  sued  at  law  in  relation  to  the  same,  ceased  at  once  to 
have  any  title  either  at  law  or  equity.  Although  it  is  probable 
that  it  was  the  intent  of  the  statute  to  convert  all  uses  or  trusts 


been  held  that  a  conveyance  to  grantees  as  trustees  for  others  without 
setting  forth  the  terras  of  the  trust,  but  containing  no  restriction  upon  the 
trustees'  power  of  disposition,  does  not  come  within  the  terms  of  this  statute 
and  that  the  trustees  have  a  valid  title.  Webb  v.  Rockefeller,  66  Kan.  160; 
Boyer  v.  Sims,  61  Kan.  593.  A  similar  statute  in  Indiana  has  been  given 
a  different  interpretation.    See  Stroup  v.  Stroup,  140  Ind.  179. 

The  statute  of  uses  has  been  held  to  be  part  of  the  common  law  of  Colo- 
rado. Teller  v.  Hill,  18  Colo.  App.  509;  Morgan  v.  Rogers,  79  Fed.  577. 
And  of  Utah.  Henderson  v.  Adams,  15  Utah,  30;  Schenck  v.  Wicks,  23 
Utah,  576. 

It  has  been  held  not  to  be  the  law  of  Nebraska.  Farmers'  &  Merchants' 
Ins.  Co.  V.  Jensen,  58  Neb.  522. 

In  North  Dakota  and  South  Dakota,  there  are  statutes  practically  the 
same  as  those  of  New  York.  No.  Dak.  Civ.  Code  (1905),  §§  4816-4837. 
Smith  V.  Security  L.  &  T.  Co.,  8  N.  D.  451.  So.  Dak.  Civ.  Code  (1908), 
§§  296-318. 

In  the  District  of  Columbia,  the  statute  of  uses  has  been  substantially 
re-enacted.    D.  C.  Code  (1905),  §  1617.] 

»  4  Kent,  Com.  301. 

515 


§  300.]  ESTATE    OF    THE    TRUSTEE.  [CHAP.  X. 

into  legal  estates,^  yet  the  convenience  to  the  subject  of  being 
able  to  keep  the  legal  title  to  an  estate  in  one  person,  while  the 
beneficial  interest  should  be  in  another,  was  too  great  to  be 
given  up  altogether,  and  courts  of  equity  were  astute  in  finding 
reasons  to  withdraw  a  conveyance  from  the  operation  of  the 
statute.^  Three  principal  reasons  or  rules  of  construction  were 
laid  down,  whereby  conveyances  were  excepted  from  such  oper- 
ation: first,  where  a  use  was  limited  upon  a  use;  second,  where 
a  copyhold  or  leasehold  estate,  or  personal  property,  was  lim- 
ited to  uses;  third,  where  such  powers  or  duties  were  imposed 
with  the  estate  upon  a  donee  to  uses  that  it  was  necessary  that 
he  should  continue  to  hold  the  legal  title  in  order  to  perform  his 
duty  or  execute  the  power.^  In  all  of  these  three  instances, 
courts  both  of  law  and  equity  held  that  the  statute  did  not 
execute  the  use,  but  that  such  use  remained,  as  it  was  before 
the  statute,  a  mere  equitable  interest  to  be  administered  in  a 
court  of  equity.  These  uses,  which  the  statute  did  not  execute, 
were  called  trusts,  and  justify  Mr.  Cruise's  language  that  "a 
trust  is  a  use  not  executed  by  the  statute  of  27  Henry  VIII." 
The  statute  may  execute  the  use  in  regard  to  one  party  and 
not  as  to  another  in  the  same  deed;  for  example,  where  land  is 

1  1  Green.  Cruise,  tit.  12,  c.  1,  §  1. 

*  Mr.  Cruise  thought  that  the  strict  construction  put  upon  the  statute 
by  the  judges  in  a  great  measure  defeated  its  effect.  Id.  Mr.  Blackstone 
is  of  a  similar  opinion.  2  Black.  Com.  336.  And  Lord  Mansfield,  in  Good- 
right  V.  Wells,  2  Doug.  771,  said  that  it  was  not  the  liberality  of  courts  of 
equity,  but  the  absurd  narrowness  of  courts  of  law,  resting  on  literal  dis- 
tinctions, which  in  a  manner  repealed  the  statute  of  uses,  and  drove  cestuis 
que  trust  into  equity. 

'  Hill  on  Trustees,  230.  See  §  735,  a;  Farr  v.  Gilreath,  23  S.  C.  511; 
Preachers'  Aid  Society  v.  England,  106  111.  129  (referring  to  the  text).  Where 
an  estate  is  conveyed  to  A.  for  the  use  of  B.,  and  nothing  more  is  said,  the 
title  is  immediately  vested  in  B.  by  the  statute,  even  though  express  words 
of  trust  are  used;  but  if  certain  duties  are  imposed  on  A.,  such  as  collection 
of  rents,  making  investments,  &c.,  which  require  that  he  should  keep  the 
estate,  the  trust  will  be  an  active  one,  and  the  statute  will  not  execute  it. 
Kellogg  V.  Hale,  108  111.  164;  Howard  v.  Henderson,  18  S.  C.  189;  Hooberry 
V.  Harding,  10  Lea  (Tenn.),  392;  Henderson  v.  Hill,  9  Lea  (Tenn.),  25. 
[  Harris  v.  Ferguy,  207  111.  534.] 

516 


CHAP.  X.]  CONSTRUCTION    OF   THE    STATUTE.  [§  301. 

conveyed  to  A.  in  trust  for  B.  for  life,  contingent  remainder  to 
C,  the  statute  may  execute  tlie  life  estate  in  B.,  and  still  leave 
the  fee  in  A.  for  the  preservation  of  the  remainder.' 

§  301.  The  first  two  of  these  rules  originated  in  a  strict 
construction  of  the  technical  words  used  in  the  statute,  which 
are,  "where  any  person  is  seized  of  any  lands  or  to  the  use  of 
another."  If  A.  grants  lands  to  B.  for  the  use  of  C.  for  the 
use  of  D.,  B.  was  said  to  be  "seized"  of  the  lands  to  the  use 
of  C;  and  the  statute  immediately  executed  the  use  in  C.  and 
gave  him  the  legal  title.  But  C.  was  said  not  to  be  "seized"  in 
lands  to  the  use  of  D.,  but  only  of  a  use;  therefore  the  use  of 
C.  for  D.  remained,  as  it  was  before  the  statute,  unexecuted.^ 
It  remained,  therefore,  a  mere  equitable  estate  or  trust,  cog- 
nizable in  a  court  of  equity  alone.  Hence  the  maxim  that  a 
use  could  not  be  limited  on  a  use;  not  that  such  second  use  was 
void,  but  the  statute  did  not  execute  it,  and  it  remained  a  mere 
equitable  interest.  Thus,  if  lands  come  to  A.  and  his  heirs  by 
feoflt'ment,  grant,  devise,  or  other  assurance,  to  the  use  of  B. 
and  his  heirs,  to  the  use  of  C.  and  his  heirs;  or  to  the  use  of  C. 
in  fee  or  for  life,  with  remainders  over;  or  to  B.  and  his  heir 
in  trust  to  permit  C.  and  D.  to  receive  the  rents,  —  in  all  these 
cases  the  statute  executes  the  first  use  only  in  B.  and  his  heirs, 
and  the  legal  estate  is  vested  in  him,  as  trustee  for  the  parties 
beneficially  interested.^ 

1  Howard  v.  Henderson,  18  S.  C.  192;  Williman  v.  Holmes,  4  Rich.  Eq. 
(S.  C.)  476.  [Thompson  «;.  Sanders,  118  Ga.  928.  See  in/ra,  §  309  and 
notes.] 

*  Tyrrell's  Case,  Dyer,  155  a. 

'  Durant  v.  Ritchie,  4  Mason,  65;  Hurst  v.  McNeil,  1  Wash.  C.  C.  70; 
Hutchins  v.  Heywood,  50  N.  H.  496;  Croxall  v.  Sherard,  5  Wall.  268;  Reed 
V.  Gordon,  35  Md.  1S3;  Cueman  v.  Broadnax,  37  N.  J.  Eq.  523;  Matthews 
V.  Ward,  10  G.  &  J.  443;  Whetstone  v.  Bury,  2  P.  Wms.  146;  Wagstaff  v. 
Wagstaff,  id.  258;  Att.  Gen.  v.  Scott,  Forrest,  138;  Doc  v.  Passingham,  6  B.  & 
Cr.  305;  Jones  r.  Lord  Saye  &  Sele,  1  Eq.  Caa.  Ab.  383;  Marwood  v.  Darell, 
Ca.  t.  Hard.  91 ;  Hopkins  v.  Hopkins,  1  Atk.  581 ;  Jones  i;.  Bush,  4  Harr.  1 ; 
1  Sand.  Uses,  195;  2  Black.  Com.  336;  Williams  v.  Waters,  14  M.  &  W.  166; 
Ramsay  v.  Marsh,  2  McCord,  252;  Burgess  v.  WTicate,  1  W.  Black.  160; 

517 


§  302.]  ESTATE    OF    THE    TRUSTEE.  [CHAP.  X. 

§  302.  So  where  lands  are  conveyed  by  covenant  to  vStand 
seized,  or  by  bargain  and  sale,  or  by  appointment  under  a 
power,  to  A.  and  his  heirs,  to  the  use  of  B.  and  his  heirs,  the 
legal  estate  will  vest  in  A.,  and  B.  will  take  only  an  equitable 
interest;  for  these  conveyances  do  not  operate  to  transfer  the 
seizin  to  A.^  They  merely  raise  a  use  which  the  statute  executes 
in  him,  and  stops  there.  Thus,  in  a  deed  of  bargain  and  sale, 
the  operation  is  as  follows:  the  consideration  and  the  bargain 
raise  a  use  in  the  bargainee  which  the  statute  executes;  and 
thus,  under  a  deed  of  bargain  and  sale,  the  bargainee  obtains 
both  the  use  and  the  legal  title.  But  no  use  can  be  limited 
and  executed  on  a  use.  Hence,  if  A.  conveys  land  to  B.,  to  the 
use  of  C,  by  a  deed  of  bargain  and  sale,  the  statute  will  not  exe- 
cute the  use  in  C,  but  the  legal  title  will  remain  in  B.  subject 
to  a  trust  for  C,  to  be  administered  in  equity;  for  the  considera- 
tion and  bargain  only  raise  a  use  in  B.,  which  the  statute  exe- 
cutes but  the  use  in  B.  for  C.  is  in  the  nature  of  a  use  limited 
upon  a  use,  which  the  statute  does  not  execute.-  (a) 

Wilson  V.  Cheshire,  1  McCord,  233.  The  statute  of  uses  in  some  of  the 
States  as  Virginia,  speaks  of  uses  raised  by  deed.  Consequently,  it  is  said 
that  uses  raised  by  devise  are  not  executed,  but  remain  trusts.  Judge 
Lomax,  however,  denies  this  construction.  1  Lomax,  Dig.  188,  196.  [  But 
see  Blake  v.  O'Neal,  63  W.  Va.  483.]  In  New  York,  the  uses  named  in  the 
text  would  be  executed  in  the  cestui  que  use  by  the  statute  of  uses  and  trusts, 
and  he  would  have  the  entire  legal  title. 

1  Johnson  v.  Cary,  16  Johns.  304;  1  Cruise,  Dig.  tit.  12,  c.  1,  §  9;  Gilb. 
on  Uses,  67,  347.  Mr.  Blackstone  condemned  tliis  rule.  2  Black.  Com. 
336.  And  Lord  Mansfield  said  that  the  rule  grew  up  from  the  absurd 
narrowness  of  courts  of  common  law.  Goodright  v.  Wells,  2  Doug.  771. 
And  Mr.  Greenleaf  doubts  if  the  rule  that  a  use  cannot  be  limited  upon  a 
use  would  be  generally  acted  upon  in  the  United  States,  especially  in  those 
States  which  have  declared  by  statute  what  formahties  shall  alone  be  neces- 
sary to  pass  estates.  Green.  Cruise,  Dig.  tit.  12,  c.  1,  §  4,  n.  (vol.  i,  p.  380); 
and  see  Davis  v.  Hayden,  9  Mass.  514;  Flint  v.  Sheldon,  13  Muse.  MS;  Mar- 
shall V.  Fisk,  6  Mass.  24. 

^  The  question  has  been  raised  in  Massachusetts  whether  land  can  be 
conveyed  by  deed  of  bargain  and  sale  to  one  for  the  use  of  another,  and 
create  anything  more  than  a  trust  for  the  last  beneficiary.     Stearns  v. 

(a)  It  has  been  held  in  Massachu-  form  of  the  deed  is  such  that  it  may 
setts  and  Maryland  that  where  the     take  effect  either  as  a  deed  of  bargain 

518 


CHAP.  X.]  CONSTRUCTION    OF   THE    STATXJTE.  [§  303. 

§  303.  Another  technical  construction  of  the  word  "seized" 
withdrew  all  uses  or  trusts  created  in  copyhold  or  leasehold 
estates,  and  all  chattel  interests  and  personal  property,  from 
the  operation  of  the  statute.  The  judges  resolved  in  the  22d 
of  Elizabeth  that  the  word  "seized"  was  only  applicable  to 
freeholds;  consequently  no  one  could  be  said  to  be  "seized"  of 
a  leasehold  or  other  chattel  interests  in  real  estate,  or  of  personal 
property.  Therefore,  if  A.  gave  leaseholds  or  personal  property 
to  B.  for  the  use  of  C,  the  statute  did  not  execute  the  use,  but 
B.  took  the  legal  title  in  trust  for  C,  which  trust  was  not  rec- 
ognized at  law,  but  only  in  equity.^  So  tenants  by  curtesy  or 
in  dower  cannot  stand  seized  to  a  use,  for  they  are  in  by  act  of 
law  in  consideration  of  marriage  and  not  in  privity  of  estate; 
but  in  equity  they  would  be  held  to  execute  any  trusts  charged 
upon  their  interests  or  estates.^ 

Palmer,  10  Met.  32;  Norton  v.  Leonard,  12  Pick.  152.  The  general  doc- 
trine stated  in  the  text  is  fully  admitted,  but  it  is  claimed  in  answer  that 
the  deeds  in  general  use,  although  in  the  general  form  of  deeds  of  bargain 
and  sale,  are  in  fact,  by  force  of  the  statutes,  equivalent  to  grants  or  feoff- 
ments, and  it  is  said  that  if  deeds  will  not  operate  in  the  form  in  which 
they  are  drawn,  they  shall  be  construed  to  operate  according  to  the  inten- 
tion of  the  parties.  Higbee  v.  Rice,  5  Mass.  352;  Pray  v.  Peirce,  7  Mass. 
384;  Knox  v.  Jenks,  id.  494;  Russell  v.  Coffin,  8  Pick.  143.  The  question 
was  left  undecided  in  Norton  v.  Leonard  and  Stearns  v.  Palmer,  ut  supra, 
but  see  the  remarks  of  Chief  Justice  Dana,  in  Thatcher  ti.  Omans,  3  Pick. 
528.  The  same  question  may  arise  in  other  States,  where  their  deeds  are 
in  form  deeds  of  bargain  and  sale. 

1  Ante,  §  6;  Dyer,  369  a;  Doe  v.  Routledge,  2  Cowp.  709;  Sympson  v. 
Turner,  1  Eq.  Ab.  383;  2  Wooddes.  Lect.  pp.  295,  297;  1  Cruise,  Dig.,  p.  354, 
and  tit.  12,  c.  1;  Gilb.  Ten.  182;  Gilb.  Uses,  67  n.;  Rice  v.  Burnett,  1  Spear, 
Eq.  579;  Joor  t-.  Hodges,  Spear,  593;  Pyron  j>.  Mood,  2  McMullan,  293. 
In  some  States,  the  statutes  use  the  word  "possessed"  insteafl  of  the  word 
"seized,"  in  which  case  both  real  and  personal  estate  and  chattel  interests 
would  be  transferred  to  the  uses  raised.  Tabb  v.  Baird,  3  Call,  482.  But 
this  construction  is  controverted  by  Judge  Lomax.     1  Lomax,  Dig.  196. 

*  1  Saunders  on  Uses,  86;  2  Fonbl.  Eq.  book  2,  c.  6,  §  1,  and  notes, 
p.  140. 

and  sale  or  as  a  feoffment,  the  court  23;   Carr  v.   Richardson,  157  Mass. 

will  construe  it  in  such  a  way  as  to  576;  Rogers  r.  Sisters  of  Charity,  97 

carry  out  the  evident  intention  of  the  Md.  550. 
parties.   Dakin  v.  Savage,  172  Mass. 

519 


§  305.]  ESTATE    OF   THE    TRUSTEE.  [CIIAP.  X. 

§  304.  From  these  instances,  it  will  be  seen  that,  in  order  to 
create  a  trust,  it  is  necessary  to  prevent  the  legal  estate  from 
vesting  in  the  cestui  que  trust,  and  it  is  necessary  that  not  only 
the  legal  title,  but  the  primary  use,  should  vest  in  the  trustee. 
Any  form  of  conveyancing  that  will  effect  this,  notwithstanding 
the  statute,  will  create  a  trust;  as  if  a  grant  or  devise  be  made 
to  a  trustee  and  his  heirs,  to  the  u^e  of  the  trustee  and  his  heirs, 
or  unto  and  to  the  use  of  the  trustee  and  his  heirs,  the  title  and 
the  primary  use  will  both  be  vested  in  the  trustee;  and  although 
there  is  a  trust  or  use  over  to  some  other  person,  yet  it  will  not 
be  effected  by  the  statute,  it  not  being  the  primary  use.^  (a) 

§  305.  The  third  rule  of  construction  is  less  technical,  and 
relates  to  special  or  active  trusts,  which  were  never  within  the 
purview  of  the  statute.^  Therefore  if  any  agency,  duty,  or 
power  be  imposed  on  the  trustee,  as  by  a  limitation  to  a  trustee 
and  his  heirs  to  pay  the  rents,'  or  to  convey  the  estate,*  or  if 

1  Rackham  v.  Siddall,  1  Mac.  &  G.  607;  Doe  v.  Passingham,  6  B.  &  C. 
305;  Robinson  v.  Comyns,  t.  Talb.  154;  Doe  v.  Field,  6  B.  &  Ad.  564;  Att. 
Gen.  V.  Scott,  t.  Talb.  138;  Hopkins  v.  Hopkins,  1  Atk.  589;  Harris  v.  Pugh, 
12  Moore,  577;  4  Bingh.  335;  Prise  v.  Sisson,  2  Beas.  168;  Eckels  ?;.  Stewart, 
33  Penn.  St.  460;  Freyvogle  v.  Hughes,  56  id.  228;  Dodson  v.  Ball,  60  id.  49; 
McMuUin  v.  Beatty,  56  id.  387;  Keyser's  App.,  57  id.  6.36;  Koenig's  App., 
id.  352;  Bacon's  App.,  id.  504;  Goodrich  v.  Milwaukee,  24  Wis.  422. 

*  Chapin  v.  Universalist  Soc,  8  Gray,  580;  Exeter  v.  Odiorne,  1  N.  H. 
232;  Mott  v.  Buxton,  7  Ves.  201;  Wright  ;;.  Pearson,  1  Edw.  125;  WTieeler 
V.  Newhall,  7  Mass.  189;  Norton  v.  Leonard,  12  Pick.  152;  Striker  v.  Mott, 
2  Paige,  387;  Wood  v.  Wood,  5  id.  596. 

'  Robinson  v.  Grey,  9  East,  1;  Jones  v.  Saye  &  Sele,  1  Eq.  Cas.  Ab. 
383;  Barker  v.  Greenwood,  4  M.  &  W.  429;  Sympson  v.  Turner,  1  Eq.  Cas. 
Ab.  383;  Chapman  v.  Blissett,  Cas.  t.  Talb.  145;  Garth  v.  Baldwin,  2  Ves. 
646;  Sherwin  v.  Kenny,  16  Ir.  Ch.  138;  Anthony  v.  Rees,  2  Cr.  &  Jer.  75; 
Doe  V.  Hampray,  6  Ad.  &  El.  206;  White  v.  Barker,  1  Bing.  X.  C.  573; 
Kenrick  v.  Beauclerk,  3  Bos.  &  P.  178;  Neville  v.  Saunders,  1  Vern.  415. 


*  Ibid.;  Doe  v.  Edlin,  4  Ad.  &  El.  582;  Doe  v.  Scott,  4  Bing.  505;  Mott 
V.  Buxton,  7  Ves.  201.  [  Kirkman  v.  Holland,  139  N.  C.  185;  Henson  v. 
Wright,  88  Tenn.  501.] 

(a)  This  is  otherwise  in  States  after  those  of  New  York.  See  supra, 
which  have  patterned  their  statutes     §  299,  note. 

520 


CHAP.  X.]  WHEN  A  TRUST  IS  NOT  EXECUTED  BY  STATUTE.  [§  305. 

any  control  is  to  be  exercised,  or  duty  performed  by  the  trustee 
in  applying  the  rents  to  a  person's  maintenance/  or  in  making 
repairs,^  or  to  preserve  contingent  remainders,^  or  to  raise  a 
sum  of  money ,^  or  to  dispose  of  the  estate  by  sale,*^  —  in  all 
these,  and  in  other  and  like  cases,  the  operation  of  the  statute 
is  excluded,  and  the  trusts  or  uses  remain  mere  equitable  es- 
tates. So  if  the  trustee  is  to  exercise  any  discretion  in  the 
management  of  the  estate,  in  the  investment  of  the  proceeds  or 
the  principal,  or  in  the  application  of  the  income;^  (a)  or  if  the 

See  the  elaborate  case,  Leggett  v.  Perkins,  2  Comst.  297;  Brewster  v.  Striker, 
id.  19;  Morton  v.  Barrett,  22  Maine,  261;  McCosker  v.  Brady,  1  Barb.  Ch. 
329;  Doe  v.  Biggs,  2  Taunt.  109;  Wickliam  v.  Berry,  53  Penn.  St.  70;  Man- 
ice  V.  Manice,  43  N.  Y.  203;  Adams  t;.. Perry,  id.  487;  Hutchins  v.  Heywood, 
50  N.  H.  500;  Barnett's  App.,  46  Penn.  St.  392;  Shankland's  App.,  47  id. 
113;  Ogden's  App.,  70  id.  501 ;  Deibert's  App.,  78  id.  296;  Meecham  v.  Steele, 
93  111.  135.  [  Clarke's  Appeal,  70  Conn.  195,  219;  Hart  v.  Seymour,  147 
III.  598.] 

'  Sylvester  v.  Wilson,  2  T.  R.  444;  Doe  v.  Edlin,  4  Ad.  &  El.  582;  Vail 
V.  Vail,  4  Paige,  317;  Porter  v.  Doby,  2  Rich.  Eq.  52;  Doe  v.  Ironmonger, 
3  East,  533;  Gerard  Ins.  Co.  v.  Chambers,  46  Penn.  St.  485.  [Hart  v. 
Bayliss,  97  Tenn.  72;  Chicago  Term.  R.  Co.  v.  Winslow,  216  111.  166; 
Simmons  v.  Richardson,  107  Ala.  697.] 

*  Shapland  ;-.  Smith,  1  Bro.  Ch.  75;  Brown  v.  Ramsden,  3  Moore,  612; 
Tierney  v.  Moody,  3  Bing.  3.  [  Matthem  v.  Rankin,  228  111.  318;  Reynolds 
V.  Reynolds,  61  S.  C.  243,  249.] 

'  Biscoe  V.  Perkins,  1  Ves.  &  B.  485;  Barker  v.  Greenwood,  4  M.  &  W. 
431;  Vanderheyden  v.  Crandall,  2  Denio,  9. 

*  Wright  V.  Pearson,  1  Eden,  119;  Stanley  v.  Lennard,  id.  87. 

^  Bagshaw  v.  Spencer,  1  Ves.  142;  Wood  v.  Mather,  38  Barb.  473.  [  John- 
son V.  Lee,  228  111.  167;  Pope  v.  Patterson,  78  S.  C.  334;  Perkins  v.  Burlington 
Land  &  Imp.  Co.,  112  Wis.  509.] 

*  Exeter  v.  Odiorne,  1  N.  H.  232;  Ashhurst  v.  Given,  5  W.  &  S.  323; 
Vaux  V.  Parke,  7  W.  &  S.  19;  Nickell  v.  Handly,  10  Grat  336.  [  Holmes 
V.  Bushnell,  80  Conn.  233;  Krebs's  Estate,  184  Pa.  St.  222.] 

(a)  The  duty  of  paying  over  the  App.  D.  C.  497;  Newton  v.  Jay,  95 

rents  and  profits  to  the  beneficiary  N.  Y.  S.  413,  107,  App.  Div.  457; 

involves  the  duty  of  management  West's  Estate,  214  Pa.  St.  35;  Hunt 

and  renders  a  trust  active.    Webb  f .  v.  Hunt,   124  Mich.  .502;  Forney's 

Borden,   145  N.  C.   188;  Mason  v.  Estate,  161  Pa.  St.  209;  Mcintosh's 

Mason,  219  111.  609;  Burbach  r.  Bur-  Estate,  158  Pa.  St.  528;  Harbster's 

bach,  217  111.  547;  lire  v.  Ure,  185  Estate,  133  Pa.  St.  351;  Webber  v. 

111.  216;  Slater  v.  Rudderforth,  25  Webber,    108    Wis.   626.      Likewise 

521 


§  305.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X, 

purpose  of  the  trust  is  to  protect  the  estate  for  a  given  time, 
■or  until  the  death  of  some  one,  or  until  division,^  or  until  a 
request  for  a  conveyance  is  made.^  So  if  an  estate  is  given  upon 
a  trust  to  sell  or  mortgage  for  the  payment  of  debts,  legacies,  or 
annuities,  or  to  purchase  other  lands  to  be  settled  to  certain 
uses;^  and  this  construction  will  not  be  affected  by  a  power 
given  to  one  of  the  cestuis  que  trust  to  control  the  sale  of  part 
of  the  estate,^  nor  by  the  fact  that  the  direction  for  the  payment 
of  debts  and  legacies,  out  of  the  proceeds  of  the  sale  of  the 
land,  is  only  in  aid  of  the  personal  property.^ 


1  Posey  V.  Cook,  1  HUl  (S.  C),  413;  Morton  v.  Barrett,  22  Me.  261; 
Wood  V.  Mather,  38  Barb.  473;  McCaw  v.  Galbraith,  7  Rich.  L.  74;  Wil- 
liams V.  McConico,  36  Ala.  22;  Nelson  v.  Davis,  35  Ind.  474;  McNish  v. 
Guerard,  4  Strob.  Eq.  66,  was  to  the  contrary  upon  the  facts  of  that  par- 
ticular case.  [Graham  v.  Whitridge,  99  Md.  248;  Sanders  v.  Houston, 
etc.,  Co.,  107  Ga.  49;  Taylor  v.  Brovm,  112  Ga.  758;  McFall  v.  Kirkpatrick, 
236  111.  281.] 

2  Walter  v.  Walter,  48  Mo.  140.  [Johnson  v.  Lee,  228  111.  167;  Dyett 
V.  Central  Trust  Co.,  140  N.  Y.  54.] 

»  Curtis  V.  Price,  12  Ves.  89;  Doe  v.  Ewart,  7  Ad.  &  El.  636,  668;  Ash- 
hurstv.  Given,  5  W.  &  S.  323;  Vaux  v.  Parke,7  W.  &  S.  19;  Keene  v.  Deardon, 
8  East,  248;  Bagshaw  v.  Spencer,  1  Ves.  142;  Chamberlain  v.  Thompson, 
10  Conn.  244;  Sanford  v.  Irby,  3  B.  &  Al.  654;  Creaton  v.  Creaton,  3  Sm.  & 
Gif.  386;  Spence  v.  Spence,  12  C.  B.  (n.  s.)  199;  Smith  v.  Smith,  11  C.  B. 
(n.  8.)  121. 

*  Chapman  v.  Blissett,  Forr.  145;  Naylor  v.  Amitt,  1  R.  &  M.  501; 
Wykham  v.  Wykham,  18  Ves.  395.  [  Kirkman  v.  Holland,  139  N.  C.  185; 
Pope  V.  Patterson,  78  S.  C.  334.] 

*  Ibid.;  Murthwaite  v.  Jenkinson,  2  B.  &  Cr.  257. 


where  a  discretion  is  given  to  the  in    the   beneficiaries.      Carrigan   v. 

trustee  as  to  the  time  and  manner  of  Drake,  36  S.  C.  354.    But  in  States 

turning  over  the  principal  to  the  ben-  which  have  statutes  similar  to  the 

eficiary,  although  he  may  have  no  New  York  statute  it  seems  probable 

discretion  to  withhold  it  indefinitely,  that  such  a  power  alone  would  not  be 

Marshall's  Estate,  147  Pa.  St.  77;  suflBcient  to  prevent  the  vesting  of 

Krebs's  Estate,  184  Pa.  St.  222.  legal  title  in  the  cestuis.    See  Drake 

It  has  been  held  that  a  power  v.  Steele,  242  111.  301.    As  to  the  ef- 

given  to  the  trustee  to  sell  if  and  feet  of  an  imperative  power  to  sell, 

when  he  deems  best  prevents  the  see  infra  §  311,  note  b. 
statute  of  uses  from  vesting  the  title 

522 


CHAP.  X.]  WHEN  A  TRUST  IS  NOT  EXECUTED  BY  STATUTE.  [§  307. 

§  30G.  If,  however,  the  trust  simply  is  to  permit  and  suffer  A. 
to  occupy  the  estate,  or  to  receive  the  rents,  the  legal  estate  is 
executed  in  A.  by  the  statute.^  And  a  trust  to  hold  for  the 
use  and  benefit  of,  and  to  apply  the  rents  to,  the  children  of  A., 
is  executed  in  the  children,  notwithstanding  the  word  "apply" 
is  used.^  But  where  the  trust  is  "to  pay  unto"  or  to  permit  and 
suffer  a  person  to  receive  the  rents,  using  both  expressions,  the 
construction  will  be  governed  by  the  intention  of  the  donor; 
and  in  this  view  the  position  of  the  words  in  the  sentence,  and 
the  priority  of  the  words,  and  the  consideration  whether  the 
instrument  is  a  deed  or  will,  will  have  a  material  bearing  upon 
the  decision.'  Mr.  Jarman  and  Mr.  Lewin  suggest  that  the 
repugnancy  would  be  obviated  in  such  a  case  by  construing 
the  instrument  to  give  an  election  or  discretion  to  the  trustees.* 

§  307.  Although  the  direction  may  be  for  the  trustees  to  per- 
mit and  suffer  another  person  to  receive  the  rents,  yet  if  any 
duty  is  imposed  upon  the  trustees  expressly  or  by  implication, 
the  legal  estate  will  remain  in  them  unaffected  by  the  statute,  (a) 
As  if  the  direction  is  to  permit  A.  to  receive  the  net  ^  rents,  or 
the  clear  ^  rents,  the  trustees  take  the  legal  estate,  the  words 
net  and  clear  implying  that  the  trustees  are  to  pay  all  charges, 

'  Right  V.  Smith,  12  East,  455;  Wagstaff  v.  Smith,  9  Ves.  524;  Grcgory 
V.  Henderson,  4  Taunt.  773;  Wart«r  v.  Hutchinson,  5  Moore,  143;  1  B.  &  (\ 
721;  Barker  v.  Greenwood,  4  M.  &  W.  429;  Boughton  v.  Langley,  1  Eq.  Cas. 
Ab.  383;  2  Salk.  679  (overruUng  Burchett  i'.  Durdant,  2  Vent.  311);  Doe  v. 
Biggs,  2  Taunt.  109;  Ramsay  v.  Marsh,  2  McCord,  252;  Parks  v.  Parks,  9 
Paige,  107;  Witham  r.  Brooner,  63  111.  158.  [  Comwell  r.  Orton,  126  Mo. 
355;  Byrne  v.  Gunning,  75  Md.  30.] 

*  Laurens  v.  Jenney,  1  Spears,  356. 

'  Doe  V.  Biggs,  2  Taunt.  109;  Pybus  v.  Smith,  3  Bro.  Ch.  340. 

*  1  Jarm.  Pow.  Dev.  222,  n.;  Lewin  on  Trusts,  174  (5th  Lond.  ed.). 

*  Barker  v.  Greenwood,  4  M.  &  W.  421;  Kcene  v.  Deardon,  8  East,  248; 
Rife  V.  Geyer,  59  Penn.  St.  395. 

*  White  V.  Parker,  1  Bing.  N.  C.  573. 

(a)  As  where  the  trustee  is  given     pair.    Carney  v.  Byron,  19  R.  L  283; 
the  duty  of  seeing  that  the  taxes  are     Pugh  v.  Hayes,  1 13  Mo.  424. 
paid  and  the  property  kept  in  re- 

523 


§  308.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

and  pay  over  the  balance.  So  if,  in  addition  to  a  devise  in 
trust  to  preserve  contingent  remainders,  there  is  a  direction  to 
permit  A.  to  receive  the  rents  and  profits;  ^  and  so  if  trustees  are 
to  pay  certain  life  annuities  out  of  the  rents,  and  subject  to 
those  annuities  are  to  permit  and  suffer  certain  persons  to  re- 
ceive the  rents  and  profits.^  So  if  the  trustees  are  to  exercise 
any  control,^  as  if  there  is  a  trust  to  permit  and  suffer  a  woman 
to  receive  the  rents,  and  that  her  receipts  with  the  approba- 
tion of  one  of  the  trustees  should  be  good.*  (a) 

§  308.  A  mere  charge  of  debts  and  legacies  on  real  estate  will 
not  vest  the  estate  in  the  trustees,  unless  there  is  some  direc- 
tion to  them  to  raise  the  money  and  pay  them,  or  unless  there 
is  some  other  implication  that  they  are  to  exercise  an  active 
trust  for  the  purpose.^  (6)  Nor  does  the  legal  estate  vest  in 
the  trustees  where  the  charge  of  the  debts  and  legacies  upon  the 
real  estate  is  contingent  upon  the  insufficiency  of  any  other 
fund,  for  in  that  case  the  trustees  do  not  take  an  immediate 
vested  interest ;  ^  but  if  the  charge  is  made  in  aid  of  any  other 
fund  without  contingency,  the  trustees  will  take  immediately  a 

'  Biscoe  V.  Perkins,  1  Ves.  &  B.  485,  489;  Webster  v.  Cooper,  14  How. 
499;  Vanderheyden  v.  Crandall,  2  Denio,  9. 

2  Naylor  v.  Arnitt,  1  R.  &  M.  501. 

3  Exeter  v.  Odiorne,  1  N.  H.  232. 

*  Gregory  v.  Henderson,  4  Taunt.  772;  Barker  v.  Greenwood,  5  M.  & 
W.  4.30. 

s  Doe  V.  Claridge,  6  Man.  &  Scott,  657;  1  Jarm.  Pow.  Dev.  224,  n.; 
Kenrick  v.  Beauclerk,  3  B.  &  P.  178;  Cadogan  v.  Ewart,  7  Ad.  &  El.  636, 
668;  Jones  v.  Saye  &  Sele,  8  Vin.  262;  Creaton  v.  Creaton,  3  Sm.  &  Gif.  386; 
Collier  v.  McBean,  34  Beav.  426.    [  In  re  Stephens,  43  Ch.  Div.  39.] 

8  Goodtitle  v.  Knott,  Coop.  43;  Hawker  v.  Hawker,  3  B.  &  Al.  537; 
Gibson  v.   Montfort,   1   Ves.   485. 

(a)  Or  if  there  is  a  valid  provision  his  debts.     People's  Loan  &  Exch. 

against  anticipation,  Ames,  Petition-  Bank  v.  Garlington,  54  S.  C.  413. 
er,  22  R.  I.  54,  or  a  provision  that  (6)  Mere  authority  given  to  ex- 

the  trustee  take  charge  of  the  prop-  ecutors  and  trustees  by  will  to  pay 

erty  if  efforts  should  be  made  by  debts  does  not  charge  them  upon  the 

creditors  of  the  life  beneficiary  to  testator's  real  estate.    In  re  Head's 

subject  the  property  to  payment  of  Trustees,  45  Ch.  D.  310. 

524 


CHAP.  X.]     WHEN    TRUSTEES   TAKE    THE    LEGAL   TITLE.        [§  308. 

legal  estate.'  So  if  the  trustees  are  to  demise  the  estate  for  a 
term,  at  rack-rent  or  otherwise,  the  term  must  come  out  of 
their  interest,  and  the  legal  estate  must  be  in  them.-  If,  how- 
ever, the  instrument  confers  by  construction  upon  the  trustees 
a  mere  power  of  leasing,  a  good  legal  term  may  be  created  by 
the  exercise  of  the  power  and  without  the  legal  estate  in  them.' 
So  if  a  testator  give  his  trustees  a  simple  power  of  disposing  of 
his  estates,  as  that  his  executors  or  trustees,  or  other  persons, 
shall  sell  or  let  or  mortgage,  or  otherwise  dispose  of  his  estate, 
to  pay  his  debts  or  legacies  or  annuities,  or  other  charges,  or 
where  he  directs  his  executors  to  raise  money,  no  estate  vests 
in  the  trustees,  executors,  or  other  persons,  but  it  descends  to 
the  heir  or  the  person  to  whom  it  is  directed  to  go  in  the  will, 
until  it  is  wanted  for  the  purposes  named,  and  then  it  is  divested 
only  to  the  extent  necessary  for  the  purposes  named.  So  where 
an  estate  was  to  remain  in  the  hands  of  executors,  for  the  use 
of  the  widow  and  children,  until  the  youngest  child  should 
become  twenty-one  years  old,  the  executors  or  trustees  took 
no  interest  in  the  estate  but  a  simple  power.^  Such  directions 
are  simple  powers  of  disposition,  which  may  be  executed  with- 
out any  legal  title.^ 

»  Murthwaite  t;.  Jenkinson,  2  B.  &  Cr.  357;  Wykham  v.  Wykham  18 
Ves.  395;  and  see  Popham  v.  Bamficld,  1  Vem.  79. 

2  Doe  V.  Willan,  2  B.  &  Al.  84;  Doe  v.  Walbank,  id.  554;  Osgood  v. 
Franklin,  2  Johns.  Ch.  20;  Burr  v.  Sim,  1  Whart.  206;  Riley  v.  Gamett,  3 
De  G.  &  Sm.  629;  Brewster  t;.  Striker,  2  Comst.  19;  Doe  v.  Cafe,  7  Exch. 
675. 

»  Doe  V.  Willan,  2  B.  &  Al.  84;  Doe  i;.  Simpson,  5  East,  162. 

*  Burke  v.  Valentine,  52  Barb.  412. 

6  Reeve  v.  Att.  Gen.,  2  Atk.  223;  Hilton  v.  Kenworthey,  3  Ea.st,  553; 
Bateman  v.  Bateman,  1  Atk.  421;  Fowler  v.  Jones,  1  Ch.  Cas.  262;  Lan- 
caster V.  Thornton,  2  Burr.  1027;  Yates  v.  Compton,  2  P.  Wnis.  308;  Fay 
V.  Fay,  1  Cush.  94;  Shelton  v.  Homer,  5  Met.  462;  Bank  of  U.  S.  v.  Beverly, 
10  Peters,  532;  1  How.  134;  Deering  v.  Adams,  37  Maine,  264;  Jackson  v. 
Schauber,  7  Cow.  187;  2  Wend.  12;  Burr  v.  Sim,  1  Whart.  266;  Guyer 
V.  Maynard,  6  Gill  &  J.  420;  Dabney  t;.  Manning,  3  Ohio,  321;  Jameson  v. 
Smith,  4  Bibb,  307;  Hope  v.  Johnson,  2  Yerg.  123;  Bradshaw  v.  Ellis,  2  Dev. 
&  Bat.  Eq.  20.  In  Pennsylvania,  such  powers  conferred  upon  executors 
pass  the  estate  by  force  of  a  statute.    Miller  v.  Meetch,  8  Penn.  St.  417; 

525 


§  309.]  ESTATE    OF   THE   TRUSTEE.  [CHAP.  X. 

§  309.  Where  a  testator  gave  his  wife  an  annuity,  and  a 
certain  sum  to  his  children  to  be  paid  when  they  arrive  at 
twenty-one  years,  and  appointed  three  persons  by  name,  "as 
trustees  of  inheritance  for  the  execution  thereof,"  it  was  held 
that  the  trustees  took  the  legal  estate.^  And  if  several  trusts 
are  created  in  the  same  instrument,  some  of  which  would  be 
executed  by  the  statute,  and  others  would  require  the  legal 
estate  to  remain  in  the  trustees,  they  will  take  the  legal  estate; 
and  this  will  be  the  case,  though  the  trusts  are  limited  to  arise 
successively.^  (a)     In    all  cases  where   an   estate  is  given   to 

Chew  V.  Chew,  28  id.  17.  [  See  IV  N.  Y.  Consol.  Laws  (1909),  p.  3389, 
§  93;  p.  3391,  §  99;  Mich.  Comp.  Laws  (1897),  §  8840;  Minn.  Rev.  Laws 
(1905),  §  3250;  No.  Dak.  Civ.  Code  (1905),  §  4825;  So.  Dak.  Civ.  Code 
(1908),  §  306;  Wis.  Stat.  (1898),  §  8840.] 

1  Trent  v.  Harding,  10  Ves.  495;  1  B.  &  P.  N.  C.  116;  7  East,  95;  Re 
Hough,  4  De  G.  &  Sm.  371;  Re  Turner,  2  De  G.,  F.  &  J.  527. 

*  Hawkins  v.  Luscombe,  2  Swanst.  375,  391;  Horton  v.  Horton,  7  T. 
R.  652;  Blagrave  v.  Blagrave,  4  Exch.  570;  Brown  v.  Whiteway,  8  Hare, 
156;  Stockbridge  v.  Stockbridge,  99  Mass.  244.  But  see  Tucker  v.  John- 
son, 16  Sim.  341;  Leonard  v.  Diamond,  31  Md.  536. 

(a)  Thus  if  an  estate  in  fee  is  not  operate  to  vest  title  of  an  es- 
given  to  trustees  for  the  benefit  of  a  tate  in  remainder  when  the  persons 
life  beneficiary  with  active  duties  to  entitled  are  not  in  being  or  not 
perform  during  the  existence  of  the  ascertained;  Clarke  v.  E.  Atlanta 
equitable  life  estate  and  to  hold  Land  Co.,  113  Ga.  21;  Taylor  v. 
upon  a  passive  trust  after  the  lat-  Brown,  112  Ga.  758;  Sanders  v. 
ter's  death,  the  statute  of  uses  will  Houston,  etc.,  Co.,  107  Ga.  49; 
operate  to  vest  the  legal  title  in  Young  v.  McNeill,  78  S.  C.  143; 
those  entitled  in  remainder  upon  the  Cushman  d.  Coleman,  92  Ga.  772; 
ceasing  of  the  active  duties  of  the  it  may  operate  when  the  cestuis 
trustee  at  the  death  of  the  life  ben-  come  into  being  and  the  extent  of 
eficiary.  Hooper  v.  Feigner,  80  Md.  their  interests  becomes  certain, 
262;  Numsen  v.  Lyon,  87  Md.  31;  Mims  v.  Machlin,  53  S.  C.  6;  Hen- 
Graham  V.  Whitridge,  99  Md.  248;  derson  v.  Adams,  15  Utah,  30;  or 
Smith  V.  Proctor,  139  N.  C.  314.  It  upon  the  happening  of  the  contin- 
should  be  noted  that  this  is  an  en-  gency  which  makes  certain  the  ben- 
tirely  different  question  from  the  one  eficiaries  and  the  extent  of  their 
which  often  arises  in  such  cases,  viz.,  interests.  Uzzell  v.  Horn,  71  S.  C. 
whether  or  not  the  estate  originally  426;  Simonds  v.  Simonds,  199  Mass. 
conferred  upon  the  trustees  was  an  552.  See  Ames,  Petitioner,  22  R.  I. 
estate  in  fee  or  an  estate  pur  autre  vie.  54.    But  in  such  a  case  the  trust  for 

Although  the  statute  of  uses  will  the  intervening  life  estate  may  not 
526 


CHAP.  X.j     WHEN   TRUSTEES   TAKE    THE    LEGAL   TITLE.       [§  310, 

trustees  to  preserve  contingent  remainders,  the  statute  does  not 
execute  the  estate  in  the  cestui  que  trust; '  and  in  every  case 
where  the  words  "to  the  use  of  the  trustees"  are  used,  the 
statute  does  not  execute  the  estate,  although  it  is  to  the  use  of 
the  trustees  in  trust  for  another;  for  the  statute  only  executes 
the  first  use.^ 

§  310.  If  an  estate  be  given  to  trustees  upon  a  trust  for  a 
married  woman  "for  her  sole  and  separate  use,"  and  "her 
receipts  alone  to  be  sufficient  discharges,"  or  if  the  trust  be  to 
*' permit  and  suffer  a  feme  covert  to  receive  the  rents  to  her 
separate  use,"  the  legal  estate  will  vest  in  the  trustees,  and  the 
statute  will  not  execute  it  in  the  cestui  que  trust}  (a)     In  all 

•  Laurens  v.  Jenney,  1  Speara,  365;  Co.  Litt.  265  a,  n.  2;  337  a,  n.  2. 

*  Ante,  §  304;  Keene  v.  Deardon,  8  East,  248;  Whetstone  v.  St.  Bury, 
2  P.  Wms.  146;  Pr.  Ch.  591;  Sympson  v.  Turner,  1  Eq.  Cas.  Ab.  383;  Hop- 
kins V.  Hopkins,  1  Atk.  586;  Hawkins  v.  Luscombe,  3  Swanst.  376,  388. 

'  Horton  v.  Horton,  7  T.  R.  652;  Neville  v.  Saunders,  1  Vem.  415;  Jones 
V.  Saye  &  Sele,  1  Eq.  Cas.  Ab.  383;  Doe  v.  Claridge,  6  C.  B.  641;  Hawkins 
V.  Luscombe,  2  Swanst.  391;  South  v.  Alleyne,  5  Mod.  63,  101;  Bush  v 
Allen,  id.  63;  Robinson  v.  Grey,  9  East,  1 ;  Ayer  v.  Ayer,  16  Pick.  330;  Willi- 
man  v.  Holmes,  4  Rich.  Eq.  475;  McNish  v.  Guerard,  4  Strob.  Eq.  475 
Franciscus  v.  Reigart,  4  Watts,  109;  Escheator  v.  Smith,  4  McCord,  452 
Bass  V.  Scott,  2  Leigh,  356;  Rogers  v.  Ludlow,  3  Sandf.  Ch.  104;  Richard- 
son V.  Stodder,  100  Mass.  528.     [  Gushing  v.  Spalding,  164  Mass.  287 
Walton  V.  Drumtra,  152  Mo.  489;  Schiffman  v.  Schmidt,  154  Mo.  204; 
Temple  v.  Ferguson,  110  Tenn.  84;   Carpenter  v.  Browning,  98  111.  282.] 

terminate.    See  Sanders  v.  Houston,  of   the  class  of  persons  for  whom 

etc.,  Co.,  107  Ga.  49;  Clarke  v.  E.  statute  permits  the   creation  of  a 

Atlanta  Land  Co.,  113  Ga.  21;  Gra-  trust,  and  the  statutes  Ihave  made 

ham    V.    Whitridge,    99    Md.    248;  her  sui  juris.    Smith  t;.  McWhorter, 

Smith  V.  McWhorter,  123  Ga.  287.  123  Ga.  287;  Thompson  v.  Sanders, 

The  statute  of  uses  cannot  oper-  118  Ga.  928;  Tillman  v.  Banks,  116 

ate  to  execute  a  dry  trust  where  the  Ga.  250;  Tramwell  i'.   Inman,    115 

beneficiary  has  no  capacity  to  take  a  Ga.  874.     See  also  Snell  r.  Paj'ne, 

legal  title,  as  where  the  conveyance  78  S.  W.  885  (Ky.   1904);  Adams' 

is  in  trust  for  a  partnership  described  Trustee    v.  Adams,    56   S.   W.   151 

by   the   firm   name.     Silverman   v.  (Ky.  1900)  where  the  court  decreed 

Kristufek,   162  111.  222.  a  termination,    the   trustee   hav-ing 

(a)  It  is  otherwise  in   Georgia,  been  given  no  active  duties, 
where  a  married  woman  is  not  one 

527 


§  310  a.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

these  cases  the  court  will  give  this  construction  to  the  gift,  if 
possible; '  for  if  the  statute  should  execute  the  estate  in  the 
married  woman,  certain  rights  would  arise  to  the  husband  which 
might  defeat  the  intention  of  the  donor.^  These  are  not  the 
only  words  that  will  prevent  the  estate  from  vesting.  Any 
w^ords  that  show  an  intent  to  create  an  estate  or  a  trust,  for  the 
sole  and  separate  use  of  a  married  woman,  will  have  the  same 
effect.^  (a)  And  a  woman  in  contemplation  of  marriage  may 
deed  lands  to  another  to  stand  seized  to  the  sole  use  of  the 
grantor,  and  the  statute  will  not  affect  the  transaction,  but  a 
trust  will  be  created,  as  otherwise  the  intent  of  the  parties 
would  be  defeated.^  But  it  is  said  that  if  an  estate  is  "released 
by  deed"  to  A.  and  his  heirs  "upon  a  trust"  for  "the  sole  and 
separate  use  of  the  releasor,"  and  no  active  duty  is  imposed 
upon  the  trustee  in  respect  to  the  sole  and  separate  estate,  a 
common-law  court  will  reject  the  sole  and  separate  use  as  an 
estate  unknown  to  the  law;  and  it  has  been  held  in  such  case 
that  the  statute  vested  the  estate  in  the  cestui  que  trust.^ 

§  310  a.  But  [in  Pennsylvania]  in  order  that  an  estate  given 
to  the  sole  and  separate  use  of  a  woman  may  vest  and  remain 
in  the  trustees,  it  is  necessary  that  she  should  be  married  or  in 
immediate  contemplation  of  marriage.  (6)     For  if  she  is  un- 

1  Ware  v.  Richardson,  3  Md.  505;  Moore  v.  Shultz,  13  Penn.  St.  98. 

2  Ibid.;  Rice  v.  Burnett,  1  Spear,  Eq.  580. 

3  Ayer  v.  Ayer,  16  Pick.  331;  Kirk  v.  Paulin,  7  Vin.  Ab.  95;  Tyrrel  v. 
Hope,  2  Atk.  558;  Darley  v.  Darley,  3  Atk.  399;  Haxtley  v.  Hurle,  5  Ves. 
540.    [  See  infra,  §  647  et  seq.] 

*  Pittsfield  Savings  Bank  v.  Berry,  63  N.  H.  109. 

6  Nash  V.  Allen,  1  Hurl.  &  Colt.  167;  Williams  v.  Waters,  14  M.  &  W. 
166  (see  remarks  on  this  case  in  Ware  v.  Richardson,  3  Md.  505);  Roberts 
V.  Moseley,  51  Mo.  282;  Westcott  v.  Edmunds,  68  Penn.  St.  34;  Edmund's 
App.,  id.  24.    [  Woodward  v.  Stubbs,  102  Ga.  187.] 

(o)  But  the  mere  fact  that  the  of  the  statute  of  uses.    McKenzie  v^ 

person   named   as  beneficiary   is   a  Sumner,   114  N.  C.  425;  Foster  v. 

married  woman  does  not  make  the  Glover,  46  S.  C.  522. 
trust  one  for  her  "separate  use"  and  (6)  The  courts  of  Pennsylvania 

for  that  reason  outside  the  operation  themselves  admit  that  this  limita- 

528 


CHAP.  X.]    WHEN   TRUSTEES   TAKE    THE    LEGAL   TITLE.     [§  .'UO  a. 

married,  or  the  estate  is  not  given  in  the  immediate  contempla- 
tion of  her  marriage,  it  will  vest  in  her  at  once  by  the  statute 
of  uses;  or  she  will  have  the  right  to  call  for  the  execution  of 
the  trust  at  once,  by  a  conveyance  of  the  legal  estate  to  her  by 
the  trustee,  unless  there  are  some  other  provisions  in  the  will 
or  purposes  of  the  trust  which  render  it  an  active  trust,  and 
the  continuance  of  the  legal  estate  in  the  trustees  necessary  for 
its  purposes.^  It  is  not  necessary  that  the  contemplation  of  her 
immediate  marriage  should  appear  upon  the  face  of  the  will  or 
settlement,  if  in  fact  an  immediate  marriage  was  contemplated, 
and  such  fact  was  probably  known  to  the  testator  or  settlor.* 
In  such  cases  the  trust  will  continue  during  the  coverture  of 
the  woman,  and  at  the  decease  of  her  husband  she  will  have  the 
right  to  call  for  a  conveyance  of  the  property  as  upon  a  termina- 
tion of  the  trust.^  A  conveyance  "  in  trust  for  B.,  wife  of  C,  and 
her  heirs  and  assigns  forever,"  creates  a  trust  during  B.'s  cover- 
ture and  a  legal  estate  afterwards.  If  C.  dies,  the  legal  estate  is 
in  B.  and  her  heirs,  though  B.  subsequently  marries  again. ^  (a) 

'  Lancaster  t'.  Dolan,  1  Rawle,  231;  Smith  v.  Starr,  3  Wharton,  63; 
Hammersley  v.  Smith,  4  Wharton,  129;  McBride  v.  Smyth,  54  Penn.  St. 
250;  Yarnall's  App.,  70  id.  339;  Ogden's  App.,  id.  501;  29  Legal  Int.  (May, 
1872)  165;  Wells  v.  McCall,  64  Penn.  St.  207;  Springer  v.  Arundel,  id.  218; 
7  Phila.  R.  224;  Credlant's  Est.,  id.  58. 

«  Wells  V.  McCall,  64  Penn.  St.  207;  Springer  v.  Arundel,  id.  218. 

»  Megargee  v.  Naglee,  64  Penn.  St.  211;  Yarnall's  App.,  70 id.  339; 
Freyvogle  v.  Hughes,  56  id.  230. 

♦  Moore  v.  Stinson,  144  Mass.  594.     [  Gushing  v.  Spalding,  164  Mass. 

tion  upon  the  creation  of  equitable  the  law  of  Pennsylvania,  that  if  a 

separate  estates  in  married  women  trust  purports  to  be  for  the  separate 

is  a  peculiarity  of  the  law  of  that  use  of  a  woman  who  is  not  married 

State.     Kuntzleman's  Trust  Estate,  or   contemplating   immediate   mar- 

136  Pa.  St.  142;  Quin's  Estate,  144  riage,    the   trust   will    not    be   kept 

Pa.  St.  444.    Infra,  §  652,  note.    As  ahve  by  the  fact  that  active  duties 

the  point  involves  the  law  peculiarly  have  been  given  to  the  trustee,  un- 

applicable  to  equitable  separate  es-  less  it  appears  that  these  duties  were 

tates  of  married  women,  reference  is  intended  to  be  irrespective  of  cov- 

made  to  the  chapter  on  that  topic,  erture.    Kuntzleman's  Trust  Estate, 

§  652  et  seq.,  for  the  law  in  the  other  136  Pa.  St.  142. 
States  and  in  England.  (a)  The    fact    that    the    person 

There  is  the  further  peculiarity  in  named  as  beneficiary  of  a  passive 

VOL.  I.  —  34  529 


§  311.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

§  311.  As  stated,  chattel  interests  in  land  and  personal  prop- 
erty were  never  within  the  statute  of  uses,  and  the  legal  title 
to  them  will  remain  in  the  trustee,  until  the  purposes  of  the 
trust  are  accomplished,  and  until  the  possession  of  the  property 
is  in  some  way  transferred  to  the  person  entitled  to  the  use, 
or  the  last  use.*  But  where  the  trust  is  at  an  end,  the  title  is 
in  the  person  entitled  to  the  last  use;  ^  and  a  mere  delivery, 
without  other  formality,  gives  such  person  full  and  absolute 
control  of  the  property.^  Until  such  delivery  the  law  cannot 
recognize  any  equitable  interests  in  the  property.'*  If  the  cestui 
que  trust  is  an  infant,  it  is  said  that  the  trust  will  not  be  executed 
by  delivering  the  property  to  him,  because  he  is  incapable  of 
assenting  to  such  transfer.^  (a) 


287;  Temple  v.  Ferguson,  110  Tenn.  84;   Roberts  v.  Moseley,  51  Mo. 
282.] 

1  Ante,  §  303;  Harley  v.  Platts,  6  Rich.  L.  315;  Rice  v.  Burnett,  1  Spear, 
Eq.  590;  Schley  v.  Lyon,  6  Ga.  530;  Doe  v.  Nichols,  1  B.  &  Cr.  336;  Slevin, 
V.  Brown,  3  Mo.  176.  [  lire  v.  Ure,  185  111.  216;  Byrne  v.  Gunning,  75  Md. 
30.  See  GuUd  v.  Allen,  28  R.  I.  430,  437;  Martin  v.  Fort,  83  Fed.  19,  24; 
Matter  of  De  Rycke,  91  N.  Y.  S.  159,  99  App.  Div.  596.] 

2  Westcott  V.  Edmunds,  68  Penn.  St.  34;  Bacon's  App.,  57  id.  500; 
Dodson  V.  BaU,  60  id.  492;  Barnett's  App.,  10  Wright,  392;  Rife  v.  Geyes, 
59  Penn.  St.  395;  Freyvogle  v.  Hughes,  56  id.  228;  Deibert's  App.,  No.  1, 
83  id.  462;  Schaffer  v.  Lauretta,  57  Ala.  14. 

'  Ibid.;  Bringhurst  v.  Cuthburt,  6  Binn.  398;  Lawrie  v.  Bankes,  4  K. 
&  J.  142. 

*  Ibid.;  lorr  v.  Hodges,  1  Spear,  Eq.  593. 

*  Harley  v.  Platts,  6  Rich.  L  315.  But  see  Lawrie  v.  Bankes,  4  K.  & 
J.  142;  White  v.  Baylor,  10  Ir.  Eq.  53;  Bulstrode,  184. 


trust  is  a  minor  will  not  prevent  the  with  an  imperative  direction  to  sell 
statute  of  uses  from  operating  to  and  to  divide  the  proceeds  among 
vest  the  estate  in  him.  Hooper  v.  those  entitled  is  an  equitable  con- 
Feigner,  80  Md.  262;  Thompson  v.  version  of  the  land  and  is  treated  as 
Conant,  52  Minn.  208.  But  the  a  trust  of  personalty  so  far  as  con- 
fact  may  have  an  important  bearing  cems  the  rights  of  those  entitled  to 
upon  the  question  whether  or  not  the  proceeds.  McWilliamsv.  Gough, 
the  trust  instrument  imposes  active  116  Wis.  576;  Van  Zandt  v.  Garret- 
duties  on  the  trustee.  son,  21  R.  I.  352.  As  to  equitable 
(a)  A  devise  of  lands  to  a  trustee  conversion,  see  infra,   §  448,  note. 

530 


CHAP.  X.]     WHETHER  TRUSTEES  TAKE  AN  INHERITANCE.     [§  312. 

§  312.  In  all  cases  where  an  estate  is  given  to  one  for  the 
use  of  another,  in  such  manner  that  the  statute  of  uses  steps 
in  and  executes  the  estate  in  the  cestui  que  trust,  the  statute 
executes  in  the  cestui  que  trust  only  the  estate  that  the  first 
donee  or  trustee  takes;  that  is,  the  statute  executes  or  transfers 
the  exact  estate  given  to  the  trustee.  Therefore,  if  A.  give  an 
estate  to  B.  and  his  heirs  for  the  use  of  C.  and  his  heirs,  the  stat- 
ute will  execute  the  fee-simple  in  C.  But  if  A.  gives  an  estate 
to  B.  for  the  use  of  C.  and  his  heirs,  the  statute  will  execute 
only  an  estate  for  the  life  of  A.  in  C. ;  for  that  is  the  extent  of  the 
estate  conveyed  to  B.  by  a  deed  in  that  form;  that  is,  by  a  deed 
that  has  no  words  of  inheritance  in  B.'  While  this  is  the  rule  in 
respect  to  estates  which  the  statute  executes,  a  very  different 
rule  applies  to  estates  upon  a  trust  or  use  not  executed  by  the 
statute.  In  these  cases,  the  extent  or  quality  of  the  estate 
taken  by  the  trustee  is  determined,  not  by  the  circumstance 
that  words  of  inheritance  in  the  trustee  are  or  are  not  used  in 
the  deed  or  will,  but  by  the  intent  of  the  parties.  And  the 
intent  of  the  parties  is  determined  by  the  scope  and  extent  of 
the  trust.  Therefore,  the  extent  of  the  legal  interest  of  a  trustee 
in  an  estate  given  to  him  in  trust  is  measured,  not  by  words  of 
inheritance  or  otherwise,  but  by  the  object  and  extent  of  the 
trust  upon  which  the  estate  is  given.-    On  this  principle,  two 

I  Newhall  v.  Wheeler,  7  Mass.  189;  Cro.  Car.  231;  Nelson  v.  Davis,  35 
Ind.  474;  Baptist  Soc.  v.  Hazen,  100  Mass.  322;  Idle  v.  Cooke,  1  P.  Wms. 
77;  Doe  v.  Smeddle,  2  B.  &  A.  126;  Chambers  v.  Taylor,  2  M.  &  Cr.  376; 
Vanhorn  i'.  Harrison,  1  Dall.  137;  Jackson  v.  Fish,  10  Johns.  456.  Where 
a  gift  is  made  by  deed  to  individuals  and  their  "successors,"  without  the 
word  "heirs,"  in  trust  for  or  to  the  use  of  a  corporation  or  religious  society, 
an  inheritance  or  succession  is  not  created ;  and  if  the  statute  of  uses  applies 
to  the  conveyance,  only  a  life-estate  is  executed  in  the  corporation  or 
religious  society.  Henderson  v.  Hunter,  59  Penn.  St.  325;  First  Bap.  Soc. 
in  Andover  v.  Hazen,  100  Mass.  322. 

»  Cleveland  v.  Hallett,  6  Cush.  407;  Gibson  t;.  Montfort,  1  Ves.  485; 
Newhall  v.  Wheeler,  7  Mass.  189,  198;  Gates  v.  Cooke,  3  Burr.  1684;  Steams 
V.  Palmer,  10  Met.  32;  Sears  f.  Russell,  8  Gray,  86;  Gould  v.  Lamb,  11  Met. 
84;  Brooks  t;.  Jones,  id.  191;  Fisher  v.  Fields,  10  Johns.  495;  Doe  v.  Field, 
2  B.  «fe  Ad.  564;  Trent  v.  Hanning,  7  East,  99;  Doe  v.  Willan,  2  B.  &  A.  84; 
8  Vin.  Ab.  262,  pi.  18;  Shaw  v.  Wright,  1  Eq.  Caa.  Ab.  176,  pi.  8;  Brewster  v. 

531 


§  312.] 


ESTATE    OF   THE    TRUSTEE. 


[chap.  X. 


rules  of  construction  have  been  adopted  by  courts :  first,  "  Where- 
ever  a  trust  is  created,  a  legal  estate,  sufficient  for  the  purposes 
of  the  trust,  shall,  if  possible,  be  implied  in  the  trustee,  what- 
ever may  be  the  limitation  in  the  instrument,  whether  to  him  and 
his  heirs  or  not."  ^  (a)    And,  second,  "Although  a  legal  estate 


Striker,  1  E.  D.  Smith,  321;  Richardson  v.  Stodder,  100  Mass.  528;  Fox 
V.  Storrs,  75  Ala.  267;  Gosson  v.  Ladd,  77  id.  224;  West  v.  Fitz,  109  111.  425; 
Jourolmon  v.  Massengill,  86  Tenn.  82.  See  Henderson  v.  Hill,  9  Lea  (Tenn.) 
25;  Young  v.  Bradley,  101  U.  S.  782. 

1  Neilson  v.  Lagow,  12  How.  98;  Sears  v.  Russell,  8  Gray,  86;  Cham- 
berlain V.  Thompson,  10  Conn.  244;  Cleveland  v.  Hallett,  6  Cush.  407; 
Payne  v.  Sale,  2  Dev.  &  Bat.  Eq.  460;  Nichol  v.  Walworth,  4  Denio,  385; 
Upham  V.  Vamey,  15  N.  H.  462;  King  v.  Parker,  9  Cush.  71;  WilHams 
V.  First  Soc.  in  Cin.,  1  Ohio  St.  478;  Hawley  v.  James,  5  Paige,  318;  Deer- 
ing  V.  Adams,  37  Maine,  265;  Webster  v.  Cooper,  14  How.  499;  Combry 
V.  McMichael,  19  Ala.  751;  Gill  v.  Logan,  11  B.  Mon.  233;  Powell  v.  Glen, 
21  Ala.  468;  King  v.  Akerman,  2  Black,  408;  Ward  v.  Amory,  1  Curtis, 
C.  C.  427;  White  v.  Baylor,  10  Ir.  Eq.  54;  Meeting  St.  Bap.  Soc.  v.  Hail, 
8  R.  I.  240;  Nelson  v.  Davis,  35  Ind.  474;  Kirkland  v.  Cox,  94  111.  400; 
Preachers'  Aid  Society  v.  England,  106  111.  128. 


(o)  This  is  generally  true  where 
the  instrument  creating  the  trust  is 
a  will,  for  in  that  case  words  of  in- 
heritance are  not  usually  necessary 
to  devise  a  fee,  but  the  intention  of 
the  testator  controls.  Davies  v. 
Jones,  24  Ch.  Div.  190;  Crane  v. 
BoUes,  49  N.  J.  Eq.  373;  People's 
L.  &  Exch.  Bank  v.  Garlington,  54 
S.  C,  413  ;  Bean  v.  Commonwealth, 
186  Mass.  348;  Olcott  v.  Tope,  213 
111.  124;  Smith  v.  McWhorter,  123 
Ga.  287.  But  in  a  recent  case  in 
England  where  a  trust  was  created 
by  a  deed  of  conveyance  to  trustees 
without  words  of  inheritance,  it  was 
held  that  the  trustees  got  only  an 
estate  for  the  life  of  the  survivor, 
although  it  was  clear  from  the  deed 
that  the  creator  of  the  trust  intended 
to  transfer  the  entire  beneficial  in- 
terest and  did  not  intend  that  the 

532 


legal  title  should  revert  to  him  or  his 
heirs.  In  re  Irwin,  [1904]  2  Ch. 
752.  Probably  the  decision  did  not 
affect  the  rights  of  the  cestuis  que 
trust,  but  concerned  only  the  title  of 
the  trustees,  and  the  result  probably 
was  that  the  title,  instead  of  de- 
scending to  the  heir  or  the  repre- 
sentative of  the  surviving  trustee, 
reverted  to  the  heirs  of  the  grantor 
charged  with  the  same  trust;  for  it  is 
clear  law  in  England,  as  well  as  in 
America,  that  words  of  inheritance 
are  not  necessary  to  transfer  an 
equitable  fee  to  the  cestui  que  trust. 
If  it  is  clear  upon  the  face  of  the 
deed  that  the  grantor  intended  to 
transfer  the  entire  beneficial  inter- 
est, absence  of  words  of  inheritance 
as  to  it  will  not  prevent  its  passing. 
In  re  Irwing,  [1904]  2  Ch.  752;  In 
re  Trmgham's  Trusts,  [1904]  2  Ch. 


CHAP.  X.]     WHETHER  TRUSTEES  TAKE  AN  INHERITANCE.     [§  312. 

may  be  limited  to  a  trustee  to  the  fullest  extent,  as  to  him  and 
his  heirs,  yet  it  shall  not  be  carried  farther  than  the  complete 
execution  of  the  trust  necessarily  requires."  ^ 


'  Norton  v.  Norton,  2  Sandf.  296;  Williman  v.  Holmes,  4  Rich.  Eq. 
475;  Wataon  v.  Pearson,  2  Exch.  593;  Blagrave  v.  Blagrave,  4  id.  569; 


487;  Smith  i'.  Proctor,  139  N.  C. 
314;  Holmes  v.  Holmes,  86  N.  C. 
205. 

The  rule  in  North  Carolina  prior 
to  the  statute  of  1879  (see  Code 
(1905)  §  946),  seems  to  have  been  in 
accord  with  In  re  Irwing.  Smith  v. 
Proctor,  139  N.  C.  314;  Allen  v. 
Baskerville,  123  N.  C.  126;  Ful- 
bright  V.  Yoder,  113  N.  C.  456.  But 
it  has  been  declared  the  settled  law 
in  Massachusetts  that  where  the  de- 
clared purposes  of  the  trust  require 
a  fee  in  the  trustee,  the  absence  of 
words  of  inheritance  from  the  deed 
to  him  will  not  limit  his  estate  to  a 
life  estate.  Packard  v.  Old  (Colony 
Railroad,  168  Mass.  92;  Cleveland 
V.  Hallett,  6  Cush.  403;  I^g  v. 
Parker,  9  Cush.  71.  And  generally 
the  American  courts  have  taken  the 
view  that  where  the  trust  is  created 
by  deed,  as  well  as  where  it  is  cre- 
ated by  will,  the  extent  of  the  legal 
interest  given  the  trustee  "is  meas- 
ured not  only  by  words  of  inherit- 
ance or  equivalent  terms,  but  by  the 
object  and  extent  of  the  trust  upon 
which  the  estate  is  given."  Brown 
V.  Reeder,  108  Md.  653;  North  v. 
Philbrook,  34  Me.  532;  McFall  t-. 
Kirkpatrick,  236  111.  281  (setnble); 
Smith  I'.  McWhorter,  123  Ga.  287 
(samble);  Morffew  v.  S.  F.,  etc.,  R. 
Co.,  107  Cal.  587,  595;  Carney  v. 
Kain,  40  W.  Va.  758,  764. 

In  many  States  the  necessity  of 
words  of  inheritance  in  deeds  of  con- 


veyance has  been  done  away  with 
by  statute. 

When  there  are  no  words  of  in- 
heritance used  with  reference  to  the 
cestui,  and  the  deed  does  not  show 
an  intention  to  vest  in  him  the  en- 
tire beneficial  interest  and  where  he 
has  no  equitable  right  to  it  inde- 
pendently of  the  deed,  as  he  would 
have,  if  he  had  paid  the  purchase 
money,  it  haa  been  held  that  he  gets 
only  an  equitable  life  estate.  The 
fact  that  the  legal  title  is  conveyed 
to  the  trustee  and  his  heirs  will  not 
enlarge  the  cestui's  interest  in  such 
a  case.  See  In  re  Tringham's  Trusts, 
[1904]  2  Ch.  487;  McEb-oy  v.  Mc- 
Elroy,  113  Mass.  509. 

In  cases  of  executory  contracts 
to  convey  which  equity  will  specifi- 
cally enforce  the  technical  require- 
ment of  words  of  inheritance  is  of 
little  effect  when  the  intention  of  the 
parties  is  clear.  Phillips  v.  Swank, 
120  Pa.  St.  76;  Dorr  v.  Clapp,  160 
Mass.  538. 

^^^lcrever  the  form  of  the  will  or 
other  instrument  of  title  is  not  clear 
as  to  the  title  given  the  trustee,  the 
court  will  apply  as  far  as  possible  the 
general  prinrii)lc  that  the  trustee's 
title  shall  be  commensurate  with  the 
needs  of  the  trust,  and,  so  far  as  the 
rules  of  law  permit,  will  enlarge  or 
decrease  the  trustee's  apparent  title 
accordingly.  Carney  v.  Kain,  40  W. 
Va.  758,  764;  Morffew  v.  S.  F.,  etc., 
R.  Co.,  107  Cal.  587,  595;  Smith  v. 
McWhorter,  123  Ga.  287. 

533 


§  314,]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

§  313.  Thus  courts  have  by  construction  implied  an  estate  in 
the  trustees,  although  no  estate  was  given  them  in  words;  but, 
in  all  such  cases,  the  trustees  were  required  to  do  something 
that  required  a  legal  estate  of  some  kind  in  them;  as,  where  a 
testator  gave  to  a  married  woman  the  rents  and  profits  of  cer- 
tain lands  to  be  paid  her  by  his  executors,  it  was  held  to  be  a 
devise  of  the  land  itself  to  the  executors,  although  nothing  was 
given  them  in  terms,  to  enable  them  to  carry  out  the  purposes 
of  the  trust,^  So  a  power  given  to  executors  to  rent,  lease, 
repair,  and  insure  implies  a  legal  title  in  them.^ 

§  314.  In  the  same  manner,  and  for  the  same  reasons,  courts 
have  enlarged  or  extended  estates  given  to  trustees.  Thus,  if 
A.  gives  an  estate  to  B.  without  words  of  limitation,  it  is  an 
estate  for  the  life  of  B.;  but  if  A.  gives  an  estate  to  B.  to  pay 
certain  annuities  to  persons  named,  for  their  lives,  the  trustee 
takes  an  estate  for  the  lives  of  the  several  annuitants.^ 


Brown  v.  Whiteway,  8  Hare,  156;  Saye  &  Sele  v.  Jones,  1  Eq.  Cas.  Ab.  383; 
33  Bro.  P.  C.  113;  Shapland  ;;.  Smith,  1  Bro.  Ch.  75;  Heardson  v.  Willamson, 
1  Keen,  33;  Player  v.  NichoUs,  1  B.  &  Cr.  142;  Warter  v.  Hutchinson,  5 
Moore,  153;  1  B.  &  Cr.  721;  Chapman  v.  Blissett,  Forr.  145;  Doe  v.  Hicks, 
7  T.  R.  433;  Nash  v.  Coates,  3  B.  &  A.  839;  Ex  parte  Gadsden,  3  Rich.  468; 
Adams  v.  Adams,  6  Q.  B.  866;  Barker  v.  Greenwood,  4  M.  &  W.  429;  Doe 
V.  Claridge,  6  C.  B.  641 ;  Ware  v.  Richardson,  3  Md.  505;  Pearce  v.  McClena- 
ghan,  5  Rich.  178;  ElUs  v.  Fisher,  3  Sneed,  231;  Gardenhire  v.  Hinds,  1 
Head,  402;  Smith  v.  Metcalf,  id.  64;  Slavin  v.  Brown,  32  Mo.  176;  Green- 
wood V.  Coleman,  34  Ala.  150;  Bryan  v.  Weems,  29  Ala.  423;  Koenig's 
App.,  57  Penn.  St.  552;  Ivory  v.  Burns,  56  id.  300;  Wilcox  v.  Wilcox,  47 
N.  H.  488;  McBride  v.  Smyth,  59  id.  245;  West  v.  Fitz,  109  111.  425;  Far- 
mers' Nat'l  Bank  v.  Moran,  30  Minn.  167;  Davis  v.  WilUams,  85  Tenn. 
646.  But  see  Watkins  v.  Specht,  7  Cold.  585;  McElroy  v.  McElroy,  113 
Mass.  509. 

1  Gates  V.  Cooke,  3  Burr.  1684;  W.  Black.  543;  Bush  v.  Allen,  5  Mod. 
63;  Doe  v.  Woodhouse,  4  T.  R.  89;  Doe  v.  Homfray,  6  Ad.  &  El.  206;  Doe 
V.  Sampson,  5  East,  162;  Feedey's  App.,  60  Penn.  St.  349.  [  Davies  v.  Jones, 
24  Ch.  Div.  190;  Bean  v.  Commonwealth,  186  Mass.  348;  Crane  v.  Bolles, 
49  N.  J.  Eq.  373.] 

»  Kellam  v.  Allen,  52  Barb.  605. 

»  Jenkins  v.  Jenkins,  Willes,  656;  Shaw  v.  Weigh,  2  Str.  798;  Gates  v. 
Cooke,  3  Burr.  1684,  and  other  cases  cited,  §  313,  n.  1. 

534 


CBL\P.  X.]     WHETBHER  TRUSTEES  TAKE  AN  INHERITANCE.     [§  315. 

§  315.  So,  if  land  is  devised  to  trustees  without  the  word 
"heirs,"  and  a  trust  is  declared  which  cannot  be  fully  executed 
but  by  the  trustees  taking  an  inheritance,  the  court  will  enlarge 
or  extend  their  estate  into  a  fee-simple,  to  enable  them  to  carry 
out  the  intention  of  the  donor.^  Thus,  if  land  is  conveyed  to 
trustees,  without  the  word  "heirs,"  in  trust  to  sell,  they  must 
have  the  fee,  otherwise  they  could  not  sell.^  The  construction 
would  be  the  same  if  the  trust  was  to  sell  the  whole  or  a  part; 
for  no  purchasers  would  be  safe  unless  they  could  have  the 
fee;^  and  a  trust  to  convey  or  to  lease  at  discretion  would  be 
subject  to  the  same  rule.**  -1  foriwri,  if  an  estate  is  limited  to 
trustees  and  their  heirs  in  trust  to  sell  or  mortgage  or  to  lease 
at  their  discretion,  or  if  they  are  to  convey  the  property  in  fee, 
or  divide  it  equally  among  certain  persons;  for  to  do  any  or  all 
these  acts  requires  a  legal  fee.^  (a) 

1  Villiers  v.  Villiers,  2  Atk.  72;  Cleveland  v.  Hallett,  6  Cush.  407;  Fisher 
V.  Fields,  10  Johns.  505;  Ellis  v.  Fisher,  3  Sneed,  231;  Rackham  v.  Siddall, 
1  Mac.  &  G.  607;  2  Hall  &  T.  44;  Deering  v.  Adams,  37  Maine,  265;  Brown 
V.  Brown,  12  Md.  87;  Webster  v.  Cooper,  14  How.  499;  Blagrave  v.  Bla- 
grave,  4  Exch.  569;  Hawkins  v.  Chapman,  36  Md.  94;  Farquhareon  v. 
Eichelberger,  15  Md.  72;  Packard  v.  Marshall,  138  Mass.  302. 

*  Gibson  v.  Montford,  1  Ves.  491 ;  Amb.  95;  Shaw  v.  Weigh,  1  Eq.  Cas.  Ab. 
184;  Bagshawt;.  Spencer,  1  Ves.  144;  Glover  v.  Monckton,  3  Bing.  113;  10 
Moore,  453;  Hawker  v.  Hawker,  3  B.  &  A.  537;  Warter  v.  Hutchinson,  5 
Moore,  143;  1  B.  &  C.  121;  Watson  r.  Pearson,  2  Exch.  594;  Chamberlain  t;. 
Thompson,  10  Conn.  244;  Doe  v.  Howland,  7  Cow.  277;  Jackson  v.  Robins, 
16  Johns.  537;  Spessard  v.  Rohrer,  9  Gill,  262.    [  But  see  sujyra,  §  312,  note.] 

»  Bagshaw  v.  Spencer,  1  Ves.  144;  Kirkland  v.  Cox,  94  111.  402. 

*  Booth  V.  Field,  2  B.  &  Ad.  556;  Keen  v.  Walbank,  id.  554;  Brewster 
V.  Striker,  2  Comst.  19;  Deering  v.  Adams,  37  Maine,  265.  But  see  Doe 
V.  Cafe,  7  Exch.  675. 

*  Bagshaw  v.  Spencer,  1  Ves.  142;  Keane  v.  Deardon,  8  East,  242; 
Cadogan  i;.  Ewart,  7  Ad.  &  El.  636;  Tompkins  v.  Willan,  2  B.  &  A.  84; 
Keen  v.  Walbank,  id.  354;  Garth  v.  Baldwin,  2  Ves.  646;  Booth  r.  Field,  2  B. 
&  Ad.  564;  Rees  v.  Williams,  2  M.  &  W.  749;  Shelly  v.  Eldin,  4  Ad.  &  El. 

(a)  It  is  not  absolutely  necessary  trustee  of  a  life  estate?  has  the  same 

that  a  valid  power  to  sell  be  coupled  power  as  an  executor  without  any 

with  ownership  of  the  fee.    Thus,  it  title  at  all.    See  Luquire  v.  Loc,  121 

frequently  happens  that  a  life  t«n-  Ga.  624;  Tillman  v.  Banks,  116  Ga. 

ant  has  power  to  sell  the  fee  or  a  250. 

535 


§  316.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

§  316.  Where  an  estate  is  given  to  trustees  in  fee  upon  trusts 
that  do  not  exhaust  the  whole  estate,  and  a  power  is  superadded 
which  can  only  be  exercised  by  the  trustees  conveying  in  fee- 
simple,  the  trustees  will  take  the  fee,  and  the  estate  conveyed 
by  them  will  be  sustained  by  the  fee  in  them,  and  not  by  the 
mere  power.^  Where  it  is  possible  that  the  trustees  may  be 
under  the  necessity  of  exercising  a  power  over  the  fee,  as  by 
mortgage,  a  gift  to  them  of  the  fee  will  not  be  cut  down;  ^  and 
the  rule  is  that  all  the  trusts  which  trustees  must  execute  are 
to  be  executed  out  of  the  estate  given  them.^  Lord  Talbot  said 
that  it  was  wholly  a  matter  of  intention  whether  the  trustee 
should  take  a  fee  or  not;  ^  hence,  in  other  cases,  it  has  been  said 
that  if  no  intention  appeared  upon  the  face  of  the  will  that  the 
trustees  were  to  take  anything  beyond  what  was  necessary  for 
the  execution  of  the  trust,  the  estate,  though  limited  to  them 
and  their  heirs,  would  be  cut  down  to  the  limit  of  the  trust.^  So 
trustees  may  take  only  a  chattel  interest  in  real  estate,  although 
limited  to  them  and  their  heirs,  as  where  they  are  to  hold  it  in 
trust  only  for  a  short  time  to  pay  debts  and  legacies,  and  convey 
it  to  the  cestui  que  trust  when  he  comes  of  age  or  at  a  certain 
time;®  and  this  construction  will  be  much  stronger  if  the  fee  is  not 

582;  Creaton  v.  Creaton,  2  Sm.  &  Gif.  386;  Collier  v.  Walters,  L.  R.  17  Eq. 
265.  [  Crane  v.  BoUes,  49  N.  J.  Eq.  373;  People's  Loan  &  Exch.  Bank 
V.  Garlington,  54  S.  C.  413.] 

1  Fenwick  v.  Potts,  8  De  G.,  M.  &  G.  506;  Poad  v.  Watson,  37  Eng. 
L.  &  Eq.  112;  Watkins  v.  Frederick,  11  H.  L.  Cas.  354;  Haddelsey  v.  Adams, 
22  Beav.  266.  A  power  of  appointment  superadded  to  a  life-estate  will  not 
enlarge  it  into  a  fee;  and  so  a  power  of  appointment  added  to  an  estate  of 
inheritance  will  not  cut  down  the  fee.  Yamall's  App.,  70  Perm.  St.  342; 
Burleigh  v.  Clough,  52  N.  H.  267. 

2  Fenwick  v.  Potts,  8  De  G.,  M.  &  G.  506;  Horton  v.  Horton,  7  T.  R. 
652;  Brown  v.  Whiteway,  8  Hare,  156. 

3  Watson  V.  Pearson,  2  Exch.  593. 

■*  Chapman  v.  Blissett,  Forr.  Cas.  t.  Talb.  145;  Hawkins  t-.  Luscombe, 
2  Swanst.  375;  Curtis  v.  Price,  12  Ves.  89;  Collier  v.  McBean,  L.  R.  1  Ch.  80. 

6  Doe  V.  Hicks,  7  T.  R.  433;  Nash  v.  Coates,  3  B.  &  A.  839;  Boteler  v. 
Allington,  1  Bro.  Ch.  72,  is  criticised  in  7  T.  R.  433,  by  Lord  Kenyon; 
Webster  v.  Cooper,  14  How.  499;  Beaumont  v.  Salisbury,  19  Beav.  198. 
I  See  Luquire  v.  Lee,  121  Ga.  624.] 

«  Goodtitle  v.  Whitby,  1  Burr.  228;  Warter  v.  Hutchinson,  1  B.  &  Cr. 

536 


CHAP.  X.]     WUETUER  TRUSTEES  TAKE  AN  INHERITANCE.     [§  317. 

limited  to  them.'  Tlie  same  construction  as  to  the  estate  of 
trustees  will  prevail  where  the  limitation  is  to  them  and  their 
heirs,  to  their  use  and  behoof  forever,  whether  it  is  contained 
in  a  deed  or  will.^  Where  a  gift  was  made  to  one  in  trust  for 
his  wife  for  life,  and  to  her  heirs  forever,  subject  to  her  husband's 
curtesy,  the  trustee  took  an  estate  for  the  life  of  his  wife  only 
and  at  her  death  the  trust  ceased.' 

§  317.  Where  a  testator  gave  all  his  real  and  personal  estate 
to  trustees,  "their  executors,  administrators,  and  assigns,"  in 
trust  to  pay  several  annuities,  sums,  and  legacies,  on  the  defi- 
ciency of  the  personal  estates  out  of  the  rents,  issues,  and  profits 
arising  from  the  real  estate,  and  gave  the  residue  over.  Lord 
Hardwicke  held  that  if  the  annual  reception  of  the  rents  and 
profits  would  satisfy  the  purposes  of  the  trust,  the  trustees 
would  take  only  a  chattel  interest  in  the  real  estate;  but,  as 
the  land  must  be  sold  for  the  payment  of  the  legacies,  the  trus- 
tees took  the  fee.'*  The  court,  however,  is  always  reluctant  to 
enlarge  an  estate  in  trustees  beyond  the  terms  of  the  gift ;  and  it 
will  not  be  done  unless  it  is  necessary  for  the  execution  of  the 
trust.''  WTiere  it  is  plain  that  the  trustees  are  to  pay  all  charges, 
debts,  legacies,  annuities,  or  other  moneys  out  of  the  rents  and 


721;  Stanley  v.  Stanley,  16  Ve.8.  491;  Badder  v.  Harris,  2  Dowl.  &  Ry.  76; 
Wheedon  v.  Lea,  3  T.  R.  41;  Pratt  v.  Timins,  1  H.  &  Aid.  530;  Brune  v. 
Martin,  8  B.&Cr.  497;  Tuckeri-.  Johnson,  16  Sim.  341;  Glover  t-.  Monckton, 
3  Bing.  13;  Doe  v.  Davies,  1  Q.  B.  430;  Player  v.  NichoUs,  1  B.  &  Cr.  336; 
Cadogan  v.  Ewart,  7  Ad.  &  E.  136,  667. 

'  Pearce  v.  Savage,  45  Maine,  90;  Boraston's  Case,  3  Co.  19;  Player 
V.  Nicholls,  1  B.  &  Cr.  336. 

-  Hawkins  v.  Luscombe,  2  Swanst.  375;  Curtis  v.  Price,  12  Ves.  89; 
Venables  v.  Morris,  7  T.  R.  342;  Watkins  v.  Specht,  7  Cold.  585.  But  see 
Cooper  V.  Kynock,  L.  R.  8  Ch.  402. 

'  Noble  V.  Andrews,  37  Conn.  346. 

*  Gibson  v.  Montfort,  1  Ves.  485;  Amb.  93;  Woodgate  v.  Flint,  44  N.  Y. 
21,  n. 

*  Heardson  v.  Williamson,  1  Keen,  33;  White  v.  Simpson,  5  East,  162; 
Wykham  v.  Wykham,  3  Taunt.  316;  11  East,  458;  IS  Ves.  395,  416;  Ack- 
land  V.  Lutley,  9  Ad.  &  El.  879;  Doe  v.  Claridge,  6  C.  B.  641. 

537 


§  319.]  ESTATE    OF   THE   TRUSTEE,  [CHAP.  X. 

profits  of  the  estate,  and  no  anticipation  of  the  income  is  neces- 
sary or  contemplated  for  that  purpose,  they  will  take  a  chattel 
interest,  or  a  term  for  years  necessary  for  the  purpose,  and  not 
the  legal  inheritance;  ^  and  if  the  testator  use  an  inartificial 
word,  as  that  the  trustees  are  to  lend  the  estate,  they  will  not 
take  a  fee.^  A  trust  to  preserve  contingent  remainders,  without 
limitation  to  heirs,  will  not  be  enlarged;  for  the  trust  does  not 
require  an  estate  of  inheritance.^ 

§  318.  If,  however,  the  subject-matter  of  the  gift  to  trustees 
is  personal  estate,  the  whole  legal  interest  will  vest  in  them 
without  words  of  limitation.  They  may  generally  dispose  of 
personal  estate  absolutely,  being  compelled  to  account  for  it.^ 

§  319.  In  England,  a  distinction  is  kept  up  between  limita- 
tions to  trustees  in  wills  and  deeds.  Thus  it  is  said  that  in  wills 
there  is  more  room  for  construction  to  ascertain  and  carry  into 
effect  the  intention  of  testators,  and  that  in  deeds  the  rules  of 
property  are  carried  into  effect  with  more  strictness.  So  it  is 
said,  that  if  in  a  deed  an  estate  is  given  to  a  trustee  and  his 
heirs,  there  is  no  power  to  abridge  the  estate  on  the  ground  that 
the  purposes  of  the  trust  do  not  require  a  fee  in  the  trustees; 
and  that,  on  the  other  hand,  when  an  estate  is  given  by  deed  to 

1  Cordall's  Case,  Cro.  Eliz.  315;  Carter  v.  Bemadiston,  1  P.  Wms.  589; 
Hitchens  v.  Hitchens,  2  Vem.  404;  Wykham  v.  Wykham,  18  Ves.  416; 
Heardson  v.  Williamson,  1  Keen,  33;  Co.  Litt.  42  a. 

2  Payne  v.  Sale,  2  Dev.  &  Bat.  Eq.  455. 

^  Thong  V.  Bedford,  1  Bro.  Ch.  14;  Webster  v.  Cooper,  14  How.  499; 
Beaumont  v.  Salisbury,  19  Beav.  198;  Co.  Litt.  290  b;  Butl.  n.  viii. 

*  Dinsmore  v.  Biggert,  9  Barr,  135;  NicoU  v.  Walworth,  4  Denio,  385; 
Chamberlain  v.  Thompson,  10  Conn.  244;  Combry  v.  McMichael,  19  Ala. 
751;  Elton  v.  Shepherd,  1  Bro.  Ch.  531;  2  Jarm.  Pow.  Dev.  631;  Doe  v. 
Willan,  2  B.  &  Aid.  84;  Smith  v.  Thompson,  2  Swan,  386;  Foster  v.  Coe, 
4  Lans.  59;  Fellows  v.  Heermans,  id.  230;  and  Aiken  v.  Smith,  1  Sneed, 
304,  held  that  when  personalty  was  limited  to  trustees,  their  heirs  and 
executors,  in  trust  for  a  married  woman  for  life,  and  after  her  death  to  be 
equally  divided  among  her  children  or  to  be  conveyed  to  her  children,  the 
trustee  took  an  estate  for  her  life  only,  and  that  at  her  death  the  trust 
ceased.  These  cases,  however,  are  not  consistent  with  principle  or  au- 
thority, and  probably  would  not  be  followed. 

538 


CUAP,  X.J     WHETHER  TRUSTEES  TAKE  AN  INHERITANCE.     [§  320. 

a  trustee  in  trust  without  words  of  inheritance,  there  is  no 
authority  to  enlarge  the  estate  in  the  trustee  because  the  pur- 
poses of  the  trust  seem  to  require  a  larger  estate.  There  is  a 
very  respectable  amount  of  authority,  even  in  England,  that  an 
estate  given  to  trustees  and  their  heirs  in  trust,  by  a  deed,  may 
be  restricted  to  an  estate  for  the  life  of  another,  where  the  pur- 
poses of  the  trust  can  all  be  answered  by  such  an  estate  in  the 
trustee.^  In  the  cases  sustaining  the  power  to  abridge  the  legal 
operation  of  the  words  of  inheritance  in  a  deed,  there  were  some 
further  limitations  of  the  estate,  either  to  the  trustees  or  to 
third  persons,  inconsistent  with  the  idea  of  a  fee  in  the  trustees.^ 
The  authorities,  however,  greatly  preponderate,  that  courts  can- 
not look  to  the  equitable  interests  given  or  created  by  a  deed, 
in  order  to  determine  whether  the  trustee  under  it  takes  a  fee 
or  not,  if  there  are  plain  words  of  inheritance  hi  it.  Lord  Eldon 
said,  that  it  appeared  to  him  very  difficult  to  apply  the  doctrine 
to  a  deed,  and  he  refused  thus  to  cut  down  an  estate.^  While 
there  is  this  conjflict  of  authority  upon  the  point,  whether  an 
estate  given  in  fee  by  deed  to  trustees  can  be  abridged  to  the 
extent  of  the  trust,  there  is  said  to  be  no  authority  in  England 
that  an  estate  given  by  a  deed  to  trustees  without  words  of 
inheritance  can  be  enlarged  to  suit  the  purposes  of  the  trust ;  ■* 
although  there  is  one  expression  by  Lord  Ilardwicke  that  such 
enlargement  is  within  the  power  of  the  court  when  the  circum- 
stances require  it.^ 

§  320.  In  the  United  States,  the  distinction  between  deeds 
and  wills,  in  respect  to  the  trustees'  estate,  has  not  been  kept 

'  Curtis  V.  Price,  12  Ves.  89;  Venables  v.  Morris,  7  T.  R.  342,  438;  Doe 
V.  Hicks,  id.  437;  Brune  v.  Martyn,  8  B.  &  Cr.  497;  Beaumont,  v.  Salisburj', 
19  Beav.  198,  (where  the  authorities  were  commented  on);  Lewis  v.  Reea, 
3  K.  &  J.  132;  Cooper  v.  Kynock,  L.  R.  8  Ch.  403. 

2  Ibid. 

»  Wykham  v.  Wykham,  18  Ves.  395;  Colomore  v.  Tyndall,  2  Y.  &  J. 
605;  Co.  Litt.  20  b;  Butl.  n.  viii.;  Dinsmore  i-.  Biggert,  9  Barr,  123;  I^wifl  v. 
Rees,  3  K.  &  J.  132,  where  the  authorities  are  reviewed  by  Wood,  V.  C. 

*  Pottow  V.  Fricker,  6  Exch.  570;  Hill  on  Trustees,  251.  [See  In  r« 
Irwin,  [1904]  2  Ch.  752;  ^tpra,  §  312,  note.] 

»  Villiers  v.  Villiers,  2  Atk.  72. 

539 


§  320.]  ESTATE    OF   THE    TRUSTEE.  [CHAP,  X. 

up;  and  the  general  rule  is,  that,  whether  words  of  inheritance 
in  the  trustee  are  or  are  not  in  the  deed,  the  trustee  will  take  an 
estate  adequate  to  the  execution  of  the  trust,  and  no  more  nor 
less.^  Courts  will  abridge  the  estate  where  words  of  inheritance 
are  used,  if  the  execution  of  the  trust  does  not  require  a  fee;  and 
so  they  will  enlarge  the  estate  if  no  words  of  inheritance  are 
used  in  a  deed.^  In  examining  the  cases,  however,  where  a  trust 
ceases  upon  the  death  of  a  tenant  for  life,  or  upon  the  death  of  a 
person  for  whom  the  property  was  held  in  trust,  care  must  be 
taken  that  this  principle  is  not  confounded  with  another.  Thus, 
where  an  estate  is  given  to  trustees  and  their  heirs  in  trust  to 
pay  the  income  to  A.  during  her  life,  and  at  her  decease  to  hold 
the  same  for  the  use  of  her  children  or  her  heirs,  or  for  the  use 
of  other  persons  named,  the  trust  ceases  upon  the  death  of  A. 
for  the  reason  that  it  remains  no  longer  an  active  trust;  the 
statute  of  uses  immediately  executes  the  use  in  those  who  are 
limited  to  take  it  after  the  death  of  A.,  and  the  trustees  cease 
to  have  anything  in  the  estate,  not  because  the  court  has 
abridged  their  estate  to  the  extent  of  the  trust,  but  because, 
having  the  fee  or  legal  estate,  the  statute  of  uses  has  executed 
it  in  the  cestui  que  trust?   But  where  the  operation  of  the  statute 

1  King  V.  Parker,  9  Cush.  71;  Stearns  v.  Parker,  10  Met.  32;  Gould  v. 
Lamb,  11  Met.  8;  Cleveland  v.  Hallett,  6  Cush.  403;  Att.  Gen.  v.  Federal 
Street  Meeting  House,  3  Gray,  1;  Wright  v.  Delafield,  23  Barb.  498;  Fisher 
V.  Fields,  10  Johns.  105;  Welch  v.  Allen,  21  Wend.  147;  Rutledge  v.  Smith, 
1  Busb.  Eq.  283;  Liptrot  v.  Holmes,  1  Kelly  (Ga.),  390;  Cooper  v.  Kynock, 
L.  R.  8  Ch.  402.    [  See  supra,  §  312,  note.] 

2  Neilson  v.  Lagow,  12  How.  110;  North  v.  Philbrook,  34  Maine,  537; 
Rutledge  v.  Smith,  1  Busb.  Eq.  283;  Cleveland  v.  Hallett,  6  Cush.  406. 
See  to  the  contrary,  Miles  v.  Fisher,  10  Ohio,  1. 

^  Parker  v.  Converse,  5  Gray,  336;  Greenwood  v.  Coleman,  34  Ala. 
150;  Churchill  v.  Corker,  25  Ga.  479.  See  Vallette  v.  Bennett,  69  111.  336. 
And  whenever  the  active  duties  required  of  the  trustees  have  been  per- 
formed and  the  purpose  of  the  trust  ceases,  having  no  longer  any  proper 
object  to  serve,  the  legal  estate  is  executed  in  the  cestui  que  trust,  without 
further  action  by  the  court  or  the  trustee.  Stoke's  App.,  80  Penn.  St.  337; 
Dodson  V.  Ball,  60  id.  492;  Wells  v.  McCall,  64  id.  207;  Yamall's  App.,  70 
id.  335;  Meacham  v.  Steele,  93  111.  135.  And  this  is  always  so  when  an 
estate  of  inheritance  or  an  absolute  estate  is  put  in  trust  for  coverture. 
Megargee  v.  Naglee,  64  Penn.  St.  216;  Lynch  v.  Swayne,  83  111.  336.    If 

540 


CHAP.  X.]     WHETHER  TRUSTEES  TAKE  AN  INHERITANCE.     [§  320. 

of  uses  does  not  put  an  end  to  the  trust,  and  where  it  is  necessary 
to  enlarge  an  estate  although  there  are  no  words  of  inheritance, 
courts  have  been  obliged  to  resort  to  difTer'^nt  expedients  to 
avoid  the  technical  rules  of  law  upon  the  subject  of  inherit- 
ances.^ In  those  States  where  no  technical  or  other  words  are 
necessary  to  convey  a  fee  no  difficulties  arise,  (a) 

the  trust  property  is  to  be  sold  and  procee<ls  distributed  to  the  beneficiaries, 
there  is  still  an  active  trust,  and  the  estate  is  not  executed  in  the  cestui. 
Kirkland  v.  Cox,  94  111.  402;  Read  v.  Power,  12  R.  I.  16. 

>  Williams  v.  First  Presby.  Soc,  1  Ohio  St.  498;  Rutledge  t;.  Smith,  1 
Busb.  Eq.  283;  Co.  Litt.  385,  386;  1  Prest.  Touchstone,  182;  Rawle  on 
Covenants,  344;  Shaw  v.  Galbraith,  7  Penn.  St.  1 12.  [  See  Brown  v.  Reeder, 
108  Md.  653.] 

(a)  In  many  States  statutes  have  words  of  inheritance  in  all  convey- 
done   away   with   the   necessity   of    ances. 


541 


§  321.]  PROPERTIES   OF   THE   TRUST   ESTATE.        [CHAP.  XI. 


CHAPTER  XL 

PROPERTIES    AND    INCIDENTS    OF    THE    LEGAL    ESTATE    IN    THE 
HANDS   OF  TRUSTEES. 

§  321.    Common-law  properties  attach  to  estates  in  trustees. 

§  322.  Dower  and  curtesy  in  trust  estates. 

§§  323,  324.   Dower  and  curtesy  in  equitable  estates  of  cestui  que  trust. 

§  325.  Forfeiture  and  escheat  of  trust  estates. 

§  326.  Trustees  must  perform  duties  of  legal  owners. 

§  327.  Forfeiture  and  escheat  of  the  equitable  estates  of  cestui  Que 

trust. 

§  328.  Suits  concerning  legal  title  must  be  in  name  of  trustee. 

§  329.  Who  has  possession  and  control  of  trust  estates. 

§§  330,  331.  Who  has  possession  of  personal  estate.    Rights  and  privileges 
of  trustees. 

§  332.  Who  proves  debt  against  bankrupt. 

§  333.  Who  has  the  right  of  voting. 

§  334.  Trustee  may  sell  the  legal  estate. 

§  335.  May  devise  the  legal  estate.     But  see  §  341 

§  336.  By  what  words  in  a  devise  the  trust  estate  passes. 

§  337.  Where  a  trust  estate  passes  by  a  devise,  and  where  not. 

§  338.  The  interest  of  a  mortgage  in  fee.    <j 

§  339.  Propriety  of  devising  a  trust  estate. 

§  340.  Whether  a  devise  can  execute  the  trust. 

§  341.  Rule  in  New  York,  &c. 

§  342.  Where  a  testator  has  contracted  to  sell  an  estate. 

§§  343,  344.   Rights  of  the  last  surviving  trustee,  and  his  heirs  or  executors. 

§  345.  Trust  property  does  not  pass  to  bankrupt  trustee's  assignee. 

§  346.  A  disseizor  of  a  trust  estate  is  not  bound  by  the  trust. 

§§  347,  348.   Merger  of  the  equitable  and  legal  titles. 
§§  349,  350.   Presumption  of  a  conveyance  or  surrender  by  trustee  to  cestui 

que  trust. 
§§  351-353.       Where  the  presumption  will  be  made,  and  where  not. 

§  354.  Must  be  some  evidence  on  which  to  found  the  presumption. 

§  355.  Is  made  in  favor  of  an  equitable  title,  not  against  it. 

§  321.   As  a  general  rule,  the  legal  estate  in  the  hands  of  a 
trustee  has  at  common  law  precisely  the  same  properties,  char- 
acteristics, and  incidents,  as  if  the  trustee  were  the  absolute 
542 


CHAP.  XI.]         PROPERTIES    OF   THE    LEGAL    ESTATE.  [§  321. 

beneficial  owner.  The  legal  title  vests  in  him,  together  with  all 
the  appurtenances  and  all  the  covenants  that  run  with  the 
land.^  The  trustee  may  sell  and  devise  it,  or  mortgage  it,  or 
it  may  be  taken  on  execution.  It  may  be  forfeited,  and  it  will 
escheat  on  failure  of  heirs,  and  so  it  will  descend  to  heirs  on  the 
death  of  the  trustee.^  (a)  All  these  properties  and  incidents 
attach  to  the  legal  estate  at  common  law,  whether  in  the  hands 
of  a  trustee  or  of  an  absolute  owner;  but  these  incidents  do  not 
generally  interfere  with  the  proper  execution  of  the  trust,  for  all 
conveyances  and  all  incumbrances  made  or  imposed  upon  the 
estate  by  the  trustee,  for  other  purposes  than  those  of  the  trust, 
or  in  breach  of  the  trust,  are  utterly  disregarded  by  a  court  of 
equity,  whatever  may  be  the  effect  of  such  conveyances  or 
incumbrances  in  a  court  of  common  law.^  And  as  the  trustee 
may  in  a  court  of  law,  as  a  general  rule,  deal  with  the  legal 
estate  in  his  hands,  as  if  he  was  the  absolute  owner,  so  the  cestui 
que  trust  in  a  court  of  equity  may  deal  with  the  equitable  estate 
in  him:  he  is  the  beneficial  and  substantial  owner,  and  in  the 
absence  of  any  disability,  —  that  is,  if  he  is  sui  juris,  —  he  may 
sell  and  dispose  of  it;  and  any  legal  conveyance  of  it  will  have 
in  equity  the  same  operation  upon  the  equitable  estate  as  a 
similar  conveyance  of  the  legal  estate  would  have  at  law  upon 
the  legal  estate.*    While  a  trust  for  the  general  benefit  of  one 

»  Devin  v.  Henderchott,  32  Iowa,  192. 

^  Zabriskie  v.  Morris  &  Essex  R.  Co.,  33  N.  J.  Eq.  22.  [  As  to  the  effect 
of  a  conveyance  known  to  be  in  contravention  of  the  terms  of  the  trust,  see 
Robinson  t'.  Pierce,  118  Ala.  273.] 

'  Leake  v.  Leake,  5  Ir.  Eq.  36G. 

*  Matthews  v.  Wardel,  10  G.  &  J.  443;  Burgess  v.  Wheate,  1  Eden, 
226;  Croxall  v.  Sherard,  5  Wall.  268;  Reid  v.  Gordon,  35  Md.  184;  Boteler 
t;.  Allington,  1  Bro.  Ch.  72;  Campbell  v.  Prestons,  22  Grat.  396. 

(a)  In  several  States  statutes  have  ifomia,    Kansas.     And    in    several 

rendered  all  conveyances  by  trustees  States   it  is  part  of    the  statutory 

in  contravention  of  the  terras  of  the  law  that  the  title  does  not  descend 

trust  absolutely  void  at  law.     See  to  the  heir  of  a  trustee  or  pass  to 

statutes   of   New  York,    Michigan,  his  personal  representative.     Ibid.: 

Minnesota,    North    Dakota,    South  Alabama. 
Dakota,  VVisconein,   Montana,  Cal- 

543 


§  322.J  PROPERTIES   OF    THE   TRUST    ESTATE.         [CHAP.  XI. 

sui  juris,  not  confined  to  maintenance,  may  create  a  transmissi- 
ble interest,  yet  a  trust  for  the  maintenance  of  an  imbecile  son 
will  not  create  a  transmissible  interest,  although  the  will  con- 
tains a  limitation  over  to  the  issue  of  such  son.^  In  case  of  a 
trust  for  the  use  of  a  married  woman  as  if  she  were  sole,  the 
husband  has  no  control  over  the  property,  and  cannot  of  him- 
self lease  or  otherwise  dispose  of  it.^ 

§  322.  The  legal  estate  in  the  hands  of  a  trustee  was  subject 
at  common  law  to  dower  and  curtesy ;  ^  but,  as  those  who  take 
in  dower  or  curtesy  take  by  operation  of  law,  they  are  subject  to 
the  same  equities  as  the  original  trustee ;  therefore,  if  the  widow 
of  a  trustee  should  take  dower  in  a  trust  estate,  she  would  take 
her  dower  subject  to  the  same  trusts  that  the  estate  was  under 
in  the  hands  of  her  husband.  It  would  thus  be  of  no  benefit  to 
her;  and  it  is  now  understood  to  be  the  equitable  rule,  that  a 
widow  has  no  dower  in  the  lands  held  by  her  husband  as  trus- 
tee, and  the  same  observations  apply  to  the  right  of  curtesy 
in  trust  estates.^  (a)     If,  however,  the  equitable  estate  meets 

1  Gray  v.  Corbit,  4  Del.  Ch.  135. 
»  Panill  V.  Coles,  81  Va.  380. 

*  Bennett  v.  Davis,  2  P.  Wms.  319;  Noel  v.  Jevon,  Freem.  43;  Nash 
V.  Preston,  Cro.  Car.  190;  Casbome  v.  English,  2  Eq.  Cas.  Ab.  728;  Hinton 
V.  Hinton,  2  Ves.  631;  1  Sugd.  V.  &  P.  358. 

*  King  V.  Bushnel,  121  111.  656;  Derush  v.  Brown,  8  Ham.  412;  Green 
V.  Green,  1  id.  249;  Cooper  v.  Whitney,  3  Hill,  97;  Powell  v.  IMonson,  etc., 
3  Mason,  364;  Bartlett  v.  Gouge,  5  B.  Mon.  152;  Cowman  v.  Hall,  3  Gill  & 
J.  398;  Robisont;.  Codman,  1  Sumn.  129;  Dean  v.  Mitchell,  4  J.  J.  Marsh. 
451;  Ray  v.  Pung,  5  B.  &  Aid.  561;  Gomez  v.  Tradesmen's  Bank,  4  Sandf. 
102. 

(a)  This  equitable  rule  has  been  neither  dower  nor  curtesy  in  the 
so  far  adopted  by  courts  of  law  that  legal  estate  held  by  a  trustee.  Bark- 
it  is  not  necessary  or  customary  for  er  v.  Smiley,  218  111.  68;  Gritten  v. 
the  wife  of  a  trustee  to  join  in  the  Dickerson,  202  111.  372;  King  v, 
latter's  conveyances  for  the  purpose  Bushnell,  121  111.  656;  Schaefer  v. 
of  releasing  dower  and  homestead  or  Purviance,  160  Ind.  63;  Johnston 
for  the  husband  of  a  trustee  to  re-  v.  Jickling,  141  Iowa,  444.  See 
lease  curtesy.  Substantially,  if  not  1  Ames'  Cases  on  Trusts,  (2d  ed.) 
theoretically,     therefore,     there    is  374,  notes;  Lewin  on  Trusts,  (11th 

544 


CHAP.  XI.]  DOWER  AND  CURTESY  IN  EQUITABLE  ESTATES.  [§  322. 


the  legal  estate  in  the  same  holder,  the  equitable  merges  in  the 
legal  estate,  and  dower  and  curtesy  will  attach ; '  and  so  they 
will  attach  so  far  as  there  is  a  beneficial  interest  in  the  trustee.* 

»  Hopkinson  v.  Dumas,  42  N.  H.  303. 

»  4  Kent,  43,  46;  Prescott  v.  Walker,  16  N.  H.  343. 


ed.)  241.  This  is  true  whether  the 
trust  is  express  or  implied.  Thus  it 
has  been  held  that  a  wife  has  no 
dower  riphts  in  land  which  her  hus- 
band has  entered  into  a  valid  con- 
tract to  convey  to  another  either 
before  acquiring  the  legal  title  or 
contemporaneously  with  the  deed  to 
him,  Hallett  v.  Parker,  69  N.  H.  134; 
or  before  his  marriage.  Oldham  v. 
Sale,  1  B.  Mon.  76.  But  it  has  been 
held  that  an  unenforceable  parol 
trust  in  land  held  by  a  husband 
does  not  deprive  a  wife  of  her  dower 
rights,  and  that  a  subsequent  recon- 
veyance by  the  husband  in  recogni- 
tion of  the  trust  does  not  shut  out 
her  dower  rights.  Bartlett  v.  Tinsley, 
175  Mo.  319;  Pruitt  v.  Pruitt,  57 
S.  C.  155.  But  see  Johnson  v.  Jick- 
ling,  141  Iowa,  444. 

A  wife's  rights  to  dower  in  part- 
nership lands  of  which  her  husband 
holds  a  moiety  of  the  legal  title  is  at 
least  subject  to  the  "trust"  upon 
which  it  is  held.  Brewer  v.  Browne, 
68  Ala.  210;  Ratcliffe  v.  Mason,  92 
Ky.  190,  194;  Bumside  v.  Merrick, 
4  Met.  537,  541 ;  Dyer  v.  Clark,  5 
Met.  562;  Young  v.  Thrasher,  115 
Mo.  222;  Sparger  v.  Moore,  117  N. 
C,  449;  Parrish  v.  Parrish,  88  Va. 
529;  Martin  v.  Smith,  25  W.  Va. 
579,  584.  WTiether  or  not  the  wife 
of  a  partner  has  dower  in  the  por- 
tion of  partnership  real  estate  in 
which  her  husband,  holding  legal 
title,  has  an  ultimate  beneficial  inter- 
est, has  been  a  subject  of  contro- 
versy.    Under  the  English  statute 

VOL.  I.  —  35 


and  decisions  the  wife  of  a  partner 
has  no  rights  of  dower  in  the  land 
itself,  because  under  the  implied 
agreement  of  the  partners,  it  is  equi- 
taVily  converted,  so  that  no  partner 
has  an  ultimate  right  to  partition, 
but  only  a  right  to  share  in  the  pro- 
ceeds of  the  land.  Deering  v.  Ker- 
foot's  Ex'r,  89  Va.  491;  Parrish  v. 
Parrish,  88  Va.  529;  In  re  Music 
Hall  Block,  S  Ont.  Rep.  (Can.)  225. 
The  same  is  true  in  America  wher- 
ever the  court  has  found  an  actual 
agreement  which  equitably  converts 
the  land.  Greene  v.  Greene,  1  Ohio, 
535;  Mallory  v.  Russell,  71  Iowa,  63; 
Galbraith  t^.  Gedge,  16  B.  Mon.  631, 
636;  Markham  v.  Merrett,  7  How. 
(Miss.)  437.  In  the  absence  of  such 
an  agreement,  a  wife  has  dower  in 
her  husband's  ultimate  share  of  real 
estate  remaining  unconverted  after 
the  partnership  has  been  wound  up, 
but  whether  or  not  she  has  any 
vested  or  inchoate  right  of  dower  in 
the  partnership  real  estate  until  the 
extent  of  her  husband's  ultimate 
share  has  been  determined  has  not 
been  clearly  settled.  See  Strong  v. 
Lord,  107  111.  25;  Young  v.  Thrasher, 
115  Mo.  222;  Woodward-Holmes 
Co.  V.  Nudd,  58  Minn.  236,  27  L.  R. 
A.  340;  Dawson  t'.  Parsons,  63  N. 
Y.  State  Rep.  320;  Welch  v.  McKen- 
zie,  66  Ark.  251 ;  Walling  i'.  Burgess, 
122  Ind.  299;  Huston  v.  Neil,  41  Ind. 
504;  Revelsky  v.  Brown,  92  Ala.  522; 
Du  Bree  v.  Albert,  100  Pa.  St.  483, 
4S7. 

545 


§  323.]  PROPERTIES   OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

§  323.  While  speaking  upon  this  subject,  it  may  be  said  that, 
until  lately,  in  England,  the  widow  of  a  cestui  que  trust  had  no 
dower  in  his  equitable  estate,  or  his  equitable  fee  in  lands.'  A 
widow  was  not  dowable  of  a  use,  and  lands  were  frequently 
conveyed  to  uses  to  defeat  the  right  of  dower.^  Thus,  if  a  man 
before  marriage  conveyed  his  lands  to  trustees  upon  trust  for 
himself  and  his  heirs  in  fee,  or  if  after  marriage  he  purchased 
lands,  and  took  the  conveyance  to  a  trustee  upon  a  trust  for 
himself  and  his  heirs,  his  wife  had  no  right  of  dower.^  But  if 
lands  were  settled  on  trustees  upon  a  trust  for  a  woman  and 
her  heirs  in  fee,  her  husband  was  entitled  to  his  curtesy.'*  This 
anomaly  grew  up  from  an  attempt  to  give  to  equitable  estates 
the  same  incidents  that  belong  to  legal  estates;  but  when  it  was 
proposed  to  assign  dower  to  a  widow  out  of  her  husband's 
equitable  estate,  it  was  found  that  it  would  disarrange  so  many 
titles  and  estates  that  the  attempt  was  abandoned.  The  same 
inconvenience  did  not  arise  in  allowing  curtesy  to  a  husband, 
for  the  reason  that  a  wife  could  not  convey  her  equitable  inter- 
ests without  her  husband  joining  in  the  act,  and  thus,  to  allow 
him  curtesy  would  not  affect  titles  to  any  considerable  extent.^ 
But  by  a  late  statute  a  wife  is  now  dowable  in  equity  of  all  the 
lands  in  which  her  husband  dies  possessed  of  a  beneficiary 
interest.^ 

»  Dixon  V.  Saville,  1  Bro.  Ch.  326;  Maybury  v.  Brien,  15  Pet.  38;  D'Arcy 
V.  Blake,  2  Sch.  &  Lef.  387;  2  Eq.  Cas.  Ab.  384;  4  Kent,  43;  1  Rop.  Hub.  & 
Wife,  354;  Banks  v.  Sutton,  2  P.  Wms.  716,  was  overruled;  Park  on  Dow. 
138.  In  Pennsylvania,  however,  a  wife  can  have  dower  in  both  legal  and 
equitable  estates.    Dubs  v.  Dubs,  31  Penn.  St.  154. 

2  Wms.  Real  Prop.  134-136;  Perkins,  §  349. 

»  Co.  Litt.  208  a  (n.  105). 

<  D'Arcy  v.  Blake,  2  Sch.  &  Lef.  387;  ChapUn  v.  Chaplin,  3  P.  Wms. 
234;  Att.  Gen.  v.  Scott,  t.  Talb.  139;  Watt  v.  Ball,  1  P.  Wms.  108;  Sweet- 
apple  V.  Bindon,  2  Vem.  536;  Cunningham  v.  Moody,  1  Ves.  174;  Dodson 
V.  Hay,  3  Bro.  Ch.  405. 

6  Chaplin  v.  Chaplin,  3  P.  Wms.  234;  Att.  Gen.  v.  Scott,  t.  Talb.  139; 
Burgess  v.  Wheat,  1  Ed.  196;  Dixon  v.  Saville,  1  Bro.  Ch.  327;  Banks  v. 
Sutton,  2  P.  Wms.  713;  Casbume  v.  Casbume,  2  J.  &  W.  204;  Watt  v.  Ball, 
1  P.  Wms.  109;  D'Arcy  v.  Blake,  2  Sch.  &  Lef.  388. 

•  3  &  4  Wm.  IV.,  c.  105;  1  Spence,  Eq.  Jur.  505. 

546 


CHAP.  XI. J  DOWER  AND  CURTESY  IN  EQUITABLE  ESTATES.  [§  324. 

§  324.  The  general  rule  in  the  United  States  is,  that  a  wife 
is  dowable  in  equity  in  all  lands  to  which  the  husband  had  a 
complete  ^  equitable  title  at  the  time  of  his  death. '^  This  rule,  it 
is  presumed,  would  apply  in  all  the  States  where  the  common- 
law  principles  of  dower  prevail,  except  in  Maine  and  Massa- 
chusetts, where  a  wife  is  not  entitled  to  dower  in  her  husband's 
equitable  estates.'  (a)     The  husband  also  in  most  States  has 

'  It  must  be  such  a  title  as  equity  would  enforce.  Efland  v.  Efland,  96 
N.  C.  488. 

*  Shoemaker  v.  Walker,  2  Serg.  &  R.  554;  Dubs  v.  Dubs,  31  Penn.  St. 
154;  Reid  v.  Morrison,  12  Serg.  &  R.  18;  Miller  v.  Beverly,  1  Hen.  &  M.  368; 
Clairborne  v.  Henderson,  3  id.  322;  Lawson  v.  Morton,  6  Dana,  471;  Bowie 
V.  Berry,  1  Md.  Ch.  452;  Miller  j;.  Stump,  3  Gill,  304;  Hawley  v.  James, 
5  Paige,  318;  Thompson  v.  Thompson,  1  Jones  (N.  C),  430;  Gully  v.  Ray, 
18  Ky.  113;  Barnes  v.  Gay,  7  Iowa,  26;  Lewis  v.  James,  8  Humph.  537; 
Rowton  V.  Rowton,  1  Hen.  &  M.  92;  Gillespie  v.  Somerville,  3  St.  &  P.  447; 
Robinson  v.  Miller,  1  B.  Mon.  93;  Smiley  v.  Wright,  2  Ohio,  512;  Davenport 
V.  Farrar,  1  Scam.  314;  Bowers  v.  Keeeecker,  14  Iowa,  301 ;  Peay  v.  Peay,  2 
Rich.  Eq.  409;  Mershon  v.  Duer,  40  N.  J.  Eq.  333,  a  resulting  trust  in 
husband.  [  Pettus  v.  McKinney,  74  Ala.  108,  114;  Redmond's  Adm'x  v. 
Redmond,  112  Ky.  760;  Kirby  v.  Vantrece,  26  Ark.  368;  Howell  v.  Jump, 
140  Mo.  441,  454.  Chiefly  by  statute.  See  Tenn.  Code  (1896),  §  4139; 
N.  J.  Gen.  Stat,  p   1275,  §  1;  Radley  v.  Radley,  70  N.  J.  Eq.  248.] 

'  Hamlin  v.  Hamlin,  19  Maine,  141;  Reed  v.  Whitney,  7  Gray,  533; 
Lobdell  V.  Hayes,  4  Allen,  187.  [  See  Hopkinson  v.  Dumas,  42  N.  H.  296, 
306;  HaU  v.  Hall,  70  N.  H.  47;  Mann  v.  Edson,  39  Me.  25.] 

(a)  It  has  been  held  in  Rhode  N.  Y.  197.    Under  an  Indiana  stat- 

Island  that  where  property  was  de-  ute  which  provides  that  a  convey- 

vised  to  A.  and  his  heirs  in  trust  for  ance  or  devise  of  lands  to  a  trustee 

D.  for  life  with  a  remainder  to  D.  on  whose  title  is  nominal  only  and  who 

termination  of  his  own  life  estate,  has  no  power  of  disposition,  vests  the 

D.'s  widow  had  no  right  of  dower  title  in  the  beneficiary,  it  has  been 

since   D.   was  never  seized   in   fee,  held  that  a  husband  has  the  legal 

even  though  a  court,  of  equity  might  title   and    his   wife   dower   in    land 

on  his  application  have  terminated  which   he   has   purchased   with   his 

the  trust  and  vested  the  fee  in  him.  own  money  and  has  had  convej'ed 

Kenyon  v.  Kenyon,  17  R.  I.  539.  to  a  trustee  to  hold  for  his  benefit 

Where  land  held  in  trust  has  been  for  life  and  to  convey  at  his  request 

equitably  converted  so  that  the  sole  or   as   he  should   appoint   by   will, 

beneficiary  is  entitled  only  to  the  Stroup  v.  Stroup,  140  Ind.  179,  185; 

proceeds,  his  widow  is  not  entitled  Ind.  Stat.    (Bums,    1908),   §   4024. 

to  dower.    Hunter  v.  Anderson,  152  But  it  is  otherwise  in   New   York 

Pa.  St.  386;  Phelps  v.  Phelps,  143  and  in  Massachusetts,  and  the  fact 

547 


§  324.]  PROPERTIES    OF    THE    TRUST    ESTATE.         [CHAP.  XI. 

curtesy  in  the  equitable  estates  of  his  wife.'  But  the  wife  must 
be  actually  in  possession  of  her  equitable  interest :  a  mere  right 
not  in  possession  is  not  enough  to  entitle  the  husband  to  cur- 
tesy.^ But  the  husband's  curtesy  will  not  be  defeated  by  the 
negligence  of  the  trustee,  as  where  money  is  directed  to  be  laid 
in  land  in  such  manner  that  the  husband  would  have  been 
entitled  to  his  curtesy,  and  the  trustee  neglected  to  invest  the 
money  during  the  life  of  the  wife,  the  husband  was  held  to  be 
entitled  to  his  curtesy.^  Nor  will  a  trust  for  the  separate  use  of 
the  wife  exclude  the  husband's  curtesy,  if  at  her  decease  the 
estate  is  to  go  to  her  heirs.^ 

1  Tillinghast  v.  CoggeBhall,  7  R.  I.  383;  Nightingale  v.  Hidden,  id.  115; 
Dubs  V.  Dubs,  31  Penn.  St.  154;  Alexander  v.  Warrance,  17  Mo.  228;  Rob- 
inson V.  Codman,  1  Sumn.  128;  Gardner  v.  Hooper,  3  Gray,  404;  Houghton 
V.  Hapgood,  13  Pick.  154;  Rawlings  v.  Adams,  7  Md.  54;  and  see  Fletcher  v. 
Ashbumer,  1  Bro.  Ch.  503,  and  Amer.  notes;  1  Green.  Cruise,  147,  n.;  Gush- 
ing V.  Blake,  30  N.  J.  Eq.  689. 

2  Parker  v.  Carter,  4  Hare,  413;  Sartill  v.  Robeson,  2  Jones,  Eq.  510; 
Pitt  V.  Jackson,  2  Bro.  Ch.  51;  Morgan  v.  Morgan,  5  Madd.  408;  4  Kent, 
Com.  31. 

^  Sweetapple  v.  Bindon,  2  Vem.  536;  Dodson  v.  Hay,  3  Bro.  Ch.  405; 
Parker  v.  Carter,  4  Hare,  413;  Casbome  v.  Scarfe,  1  Atk.  609. 

*  Roberts  v.  Dixwill,  1  Atk.  609;  Hearle  v.  Greenbank,  3  Atk.  715; 
Morgan  v.  Morgan,  5  Madd.  408;  Follett  v.  Tyrer,  14  Sim.  125;  Bennett 
V.  Davis,  2  P.  Wms.  316;  Tillinghast  v.  Coggeshall,  7  R.  I.  383. 

that  his  motive  in  not  taking  title  47.  See  Schaefer  v.  Purviance,  160 
himself  was  to  prevent  his  wife  from  Ind.  63.  But  it  is  otherwise  in  Mas- 
acquiring  rights  of  dower  is  not  in  sachusetts  by  statute.  See  Reed  v. 
itself  fraudulent  as  to  her.  Phelps  Whitney,  7  Gray,  533. 
V.  Phelps,  143  N.  Y.  197;  Seaman  v.  When  land  owned  by  a  husband 
Harmon,  192  Mass.  5.  See  also  has  been  taken  by  right  of  eminent 
Nichols  V.  Park,  79  N.  Y.  S.  547,  78  domain,  the  better  opinion  is  that 
App.  Div.  95.  the  wife's  inchoate  right  of  dower 
A  binding  executory  contract  to  does  not  entitle  her  to  have  any  part 
convey  land  upon  the  payment  of  a  of  the  money  received  for  the  land 
price  has  been  held  not  to  create  either  paid  to  her  or  set  aside  for  her 
such  an  equitable  estate  in  the  ven-  benefit  on  the  contingency  of  her 
dee  that  his  widow  is  entitled  to  surviving  her  husband.  Flynn  v. 
dower  in  the  land  upon  the  perform-  Flynn,  171  Mass.  312.  See  contra, 
ance  of  the  contract  by  the  admin-  Wheeler  v.  Kirtland,  27  N.  J.  Eq. 
istrator  of  the  vendee  after  the  lat-  534. 
ter's  death.    Hall  v.  Hall,  70  N.  H. 

548 


CHAP.  XI.]  ESCHEAT  AND  FORFEITURE  OF  TRUST  ESTATES.  [§  327. 

§  325.  At  common  law  if  a  person  holding  land  committed 
treason  or  felony,  he  forfeited  his  land  to  the  crown;  and  if  he 
died  without  heirs,  the  land  escheated  to  the  crown  or  to  his 
superior  lord.  Exactly  the  .same  incidents  applied  to  land  held 
in  trust  for  another,  if  the  trustee  committed  a  trea.son  or 
felony,  or  died  without  heirs.^  This  rule  of  law  has  been  changed 
in  England  by  statute.^  At  the  present  day  the  land  either  will 
not  be  forfeited  or  escheat,  or  the  crown  or  superior  lord  will 
take  it  subject  to  the  same  equities  under  which  the  trustee 
held  it.  In  the  United  States,  either  the  land  would  not  be 
forfeited  or  escheat,  by  reason  of  the  failure  or  incapacity  of 
the  trustee  or  his  heirs,  or  the  State  would  hold  it,  subject  to  all 
the  equities  it  was  under  in  the  hands  of  the  trustee.  It  might 
not  go  to  the  State,  for  the  reason  that,  if  trustees  are  wanting, 
courts  will  appoint  new  trustees;  and  if,  for  any  reason,  the 
trust  estate  should  vest  in  the  State,  care  would  be  taken  that 
all  the  rights  of  the  cestui  que  trust  should  be  protected.  There 
are  statutes  in  most  of  the  States  determining  the  rights  of  the 
cestui  que  trust  in  such  cases. 

§  326.  The  trustee  is  so  far  clothed  with  the  legal  title  and 
all  its  incidents,  that  he  must  perform  all  the  duties  of  the 
holder  of  the  legal  estate.^ 

§  327.  Before  the  statute  of  uses,  the  estate  of  the  cestui  que 
use  was  not  forfeited  for  crime,  and  did  not  escheat  upon  failure 
of  heirs;  but  the  feoffee  to  uses  held  the  estate  absolutely  as  his 

'  Burgess  v.  Wheat,  1  Ed.  177;  1  Bro.  Ch.  123;  Hovenden  v.  Annesley, 
2  Sch.  &  Lef.  617;  Eales  v.  England,  Pr.  Ch.  200;  Pawlett  v.  Att.  Gen.,  Hard. 
467;  Alt.  Gen.  v.  Leeds,  2  M.  &  K.  243;  Penn  v.  Baltimore,  1  Ves.  453; 
Williams  v.  Lonsdale,  3  Ves.  Jr.  752;  Reeves  v.  Att.  Gen.,  2  Atk.  223;  Geary 
V.  Bearcroft,  Cart.  67;  King  v.  Mildmay,  5  B.  &  Ad.  254;  Wilks's  Case, 
Lane,  54;  Scounden  v.  Hawlcy,  Comst.  172. 

2  4  &  5  Wm.  IV.  c.  23;  39  &  40  Geo.  IIL  c.  88;  Hughes  t-.  Wells,  9  Hare, 
749;  14  Vic.  c.  60. 

'  Wilson  t;.  Hoare,  2  B.  &  Ad.  350;  Trinity  Coll.  v.  Brown,  1  Vem.  441; 
2  Ld.  Raym.  994;  Bath  v.  Abney,  1  Dick.  260;  Carr  v.  Ellison,  3  Atk.  73; 
1  Cru.  Dig.  305. 

549 


§  327.]  PROPERTIES    OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

own.*  And  the  same  rule  was  afterwards  followed  in  regard  to 
trusts.^  Although  it  was  enacted  by  statute  that  the  cestui  que 
use  or  cestui  que  trust  should  forfeit  his  equitable  interest  upon 
conviction  for  treason,^  yet  the  law  never  went  further;  and  if 
the  cestui  que  trust  committed  a  felony,  so  that  he  could  no 
longer  claim  his  equitable  rights,  the  trustee  continued  to  hold 
the  lands  for  his  own  use  discharged  of  the  trusts."*  And  so  it 
was  held,  after  great  debate  in  Burgess  v.  Wheat,  that  if  the 
cestui  que  trust  left  no  heirs,  the  trust  estate  of  inheritance  did 
not  escheat,  but  that  the  trustee  thenceforth  held  the  estate 
discharged  of  the  trust.^  This  case  has  been  doubted,^  but  it 
has  been  followed  as  the  law.^  This  is  upon  the  principle,  that 
there  is  no  want  of  a  tenant  to  the  land,  the  trustee  being 
clothed  with  all  the  rights  of  ownership  against  all  the  world 
except  the  cestui  que  trust,  and  those  claiming  under  him.  But 
this  principle  does  not  apply  to  chattels,  where  there  can  be  no 
tenant,  nor  to  leaseholds,^  nor  to  an  equity  of  redemption."  In 
the  United  States,  trustees  would  hold  personal  property  sub- 
ject to  the  right  of  the  State  as  ultima  hoeres,  in  case  the  cestui 
que  trust  died  without  heirs  or  next  of  kin;  and  it  is  conceived 
that  they  would  hold  real  estate  under  the  same  rule.^° 

1  Burgess  v.  Wheat,  1  Ed.  199,  per  Sir  Thomas  Clarke,  M.  R. 

2  Att.  Gen.  v.  Sands,  1  Hale,  P.  C.  249. 

»  33  Hen.  VIII.  c.  20;  1  Hale,  P.  C.  248. 

*  Att.  Gen.  v.  Sands,  1  Hale,  P.  C.  249. 

*  Burgess  v.  Wheat,  1  Ed.  177;  1  Black,  123;  1  Bro.  Ch.  123. 

«  Middleton  v.  Spicer,  1  Bro.  Ch.  204;  Fawcet  v.  Lowther,  2  Ves.  300; 
Sweeting  v.  Sweeting,  33  L.  J.  Ch.  211. 

^  Taylor  v.  Haygarth,  14  Sim.  8;  8  Jur.  185;  Henchman  v.  Att.  Gen., 
3  Myl.  &  K.  485;  Onslow  v.  Wallis,  1  Mac.  &  G.  506;  1  Hall  &  T.  513;  Rittson 
V.  Stordy,  3  Sm.  &  Gif.  230;  Barrow  v.  Wadkin,  24  Beav.  1.  [See  In  re 
Bacons's  Will,  31  Ch.  D.  460.] 

8  Middleton  v.  Spicer,  1  Bro.  Ch.  201;  Walker  v.  Denne,  2  Vcs.  Jr.  170; 
Barclay  v.  Russell,  3  Ves.  424;  Henchman  v.  Att.  Gen.,  3  Myl.  it  K.  485; 
Taylor  v.  Haygarth,  14  Sim.  8;  Cradock  v.  Owen,  2  Sm.  &  Gif.  2^1;  Bishop 
V.  Curtis,  17  Jur.  23;  Powell  v.  Merritt,  22  L.  J.  208;  1  Sm.  &  Gif.  3S1. 

'  Down  V.  Morris,  3  Hare,  394. 

'0  McCaw  V.  Galbraith,  7  Rich.  L.  75;  Darrah  v.  McNair,  1  Ash.  236; 
Matthews  v.  Ward,  10  G.  &  J.  443;  4  Kent,  425;  Crane  v.  Ruder,  21  Mich. 
25. 

550 


CHAP.  XI.]  POSSESSION    AND    MANAGEMENT.  [§  328. 

§  328.  It  is  the  duty  of  the  trustee  to  defend  and  protect  the 
title  to  the  trust  estate;  and,  as  the  legal  title  is  in  him,  he  alone 
can  sue  and  be  sued  in  a  court  of  law;  the  cestui  que  trust,  the 
absolute  owner  of  the  estate  in  equity,  is  regarde<l  in  law  as  a 
stranger.^  (a)  The  rule  is  carried  to  the  extent  that  the  grantee 
of  the  trustee  can  alone  maintain  an  action  upon  the  legal  title, 
although  the  conveyance  to  him  was  a  breach  of  the  trust.^  To 
protect  himself,  the  trustee  must  defend  the  title  if  he  is  sued. 
It  is  his  duty  to  give  the  cestui  que  trust  notice  of  a  suit  hostile 
to  his  interests,  and  to  defend  the  action  in  good  faith.  To  act 
otherwise  w'ould  be  a  breach  of  trust .^  A  trustee  may  also 
maintain  an  action  for  any  trespass  upon  the  land ;  *  but  if  the 

»  May  V.  Taylor,  6  M.  &  Gr.  261;  Gibson  v.  Winter,  5  B.  A  Ad.  96; 
Allen  V.  Imlett,  Holt,  641;  Goodtitle  t;.  Jones,  7  T.  R.  47;  Baptist  Soc.  v. 
Hazen,  100  Mass.  322;  Cox  v.  Walker,  26  Me.  504;  Beach  f.  Beach,  14  Vt. 
28;  Moore  v.  Burnet,  11  Ohio,  334;  Wright  v.  Douglass,  3  Barb.  59;  Mat- 
thews V.  Ward,  10  G.  &  J.  443;  Mordecai  t'.  Parker,  3  Dev.  425;  Finn  v. 
Hohn,  21  How.  481;  Hooper  v.  Scheimer,  23  How.  235;  Fitzpatrick  v.  Fitz- 
gerald, 13  Gray,  400;  Chapin  v.  UniversaJist  Society,  8  Gray,  581;  Crane 
V.  Crane,  4  Gray,  323;  Davis  v.  Charles  River  Railroad,  11  Cush.  506;  Ray- 
mond V.  Holden,  2  Cush.  268;  Moody  v.  Farr,  33  Miss.  192;  Adler  v.  Sewell, 
20  Ind.  598;  Western  R.  R.  Co.  v.  Nolan,  48  N.  Y.517;  Church  v.  Stewart,  27 
Barb.  553;  Ryan  t-.  Bibb,  46  Ala.  323;  Ponder  v.  McGruder,  42  Ga.  242; 
Kirkland  v.  Cox,  94  111.  402.  [Bailey  v.  Selden,  112  Ala.  593;  Simmons 
V.  Richardson,  107  Ala.  697;  Miller  v.  Butler,  121  Ga.  758;  Sanders  v.  Hous- 
ton Guano  Co.,  107  Ga.  49;  McDevitt  v.  Bryant,  104  Md.  187;  Attwill  v. 
Dole,  74  N.  H.  300;  O'Malley  v.  Gerth,  67  N.  J.  Law,  610;  Robinson  v. 
Adams,  81  App.  Div.  (N.  Y.)  20;  179  N.  Y.  558;  Butler  v.  Butler,  58  N. 
Y.  S.  1094;  41  App.  Div.  477;  Price  v.  Krasnoff,  60  S.  C.  172;  In  re  Kenney, 
136  Fed.  451.  See  Birmingham,  etc.,  Co.  v.  Louisville,  etc.,  Co.,  152  Ala. 
422;  Kaylor  t-.  Hiller,  72  S.  C.  433.] 

2  Reece  v.  Allen,  5  Gilm.  241;  Taylor  v.  ICing,  6  Munf.  358;  Canoy  v. 
Troutman,  7  Ired.  155;  Cary  v.  Whitney,  48  Maine,  516;  Matthews  v. 
McPherson,  65  N.  C.  189;  Phillips  v.  Ward,  51  Mo.  295. 

»  Mackay  v.  Coates,  70  Penn.  St.  350;  Warland  v.  Colwell,  10  R.  L  369. 

*  Walker  t;.  Fawcett,  7  Ired.  44. 

(a)    It  has  been  held  in  Alabama  active  one,  since  he  has  no  legal  title 

that  a  trustee  suing  in  equity  for  an  if  the  trust  is  passive.     Roman  v. 

injunction   against  the  erection   of  Long  Distance  Tel.  &  Tel.  Co.,  147 

telegraph  poles  on  the  trust  property  Ala.  389. 
needs  to  allege  that  the  trust  is  an 

551 


§  328.]  PROPERTIES    OF   THE    TRUST    ESTATE.         [CHAP.  XI. 

cestui  que  trust  is  in  the  actual  possession  of  it,  he  may  maintain 
an  action  for  any  injury  done  to  his  possession.^  If,  however, 
the  trust  is  terminated  by  operation  of  law  or  otherwise,  and 
the  property  has  vested  in  the  cestui  que  trust,  he  may  after 
that  time  maintain  an  action  upon  the  title;  ^  and  so  if  there 
has  been  a  conveyance  or  surrender  by  the  trustees  to  the 
cestui  que  trust,^  or  a  presumption  of  a  surrender  from  the  fact 
that  the  purposes  of  the  trust  are  all  accomplished.^  If  the 
trustee  is  in  possession,  he  must  sue  for  all  injuries  to  the  pos- 
session, and  he  is  the  proper  person  to  maintain  the  claim  for 
damages  for  flowing  the  land  under  the  mill  acts,  or  for  taking 
it  for  railroad  purposes,  turnpikes,  or  public  highways.^  (a)    In 

1  Cox  V.  Walker,  26  Maine,  504;  Stearns  v.  Palmer,  10  Met.  32;  Second 
Cong.  Soc.  North  Bridgewater  v.  Waring,  24  Pick.  309.  [  Thomas  Machine 
Co.  V.  Voelker,  23  R.  I.  441;  Cape  v.  Plymouth  Church,  117  Wis.  150.] 

2  NicoU  V.  Walworth,  4  Denio,  385;  Matthews  v.  McPherson,  65  N.  C. 
189;  Lockhart  v.  Canfield,  49  Miss.  470. 

^  Den  ex  d.  Obert  v.  Bordine,  1  Spencer  (N.  J.),  394;  Hopkins  v.  Ward, 
6  Munf.  38;  Doggett  v.  Hart.  5  Fla.  215. 

^  Ibid. 

*  Davis  V.  Charles  River  R.  R.  Co.,  11  Cush.  506;  Woodruff  v.  Orange, 
32  N.  J.  49.  [  See  Lewin  on  Trusts,  (11th  ed.)  851;  1  Ames  on  Trusts  (2d 
ed.),  255.] 

(a)    If    the    trustee  refuses    to  the  case,  it  is  within  the  discretion  of 

bring  suit  against  a  third  person  to  the  court  whether  or  not  to  allow 

protect  the  trust  property  or  to  re-  this  form  of  procedure.    See  Sharp  v. 

cover  it  when  it  has  been  improperly  San  Paulo  Brazilian  Ry.  Co.,  8  Ch. 

transferred  or  when  he  has  been  dis-  597;  Yeatman  v.  Yeatman,   7  Ch. 

seised,  the  cestui  is  sometimes  al-  Div.  210;  Meldrum  v.  Scorer,  56  L. 

lowed  to  proceed  in  equity  against  T.  471. 

the  third  person  joining  the  trustee  A  trustee  is  not  estopped  from 

as   a   party   defendant.      Bailey   v.  bringing  suit   to   recover  propertj' 

Selden,   112  Ala.  593;  Robinson  v.  transferred  by  himself  in  breach  of 

Adams,  81  App.  Div.    (N.  Y.)    20;  trust  without  consent  of  all  the  ces- 

179  N.  Y.  558;  Butler  v.  Butler,  58  tuis,  Ludington  v.  Mercantile  Bank, 

N.  Y.  S.  1094,  41  App.  Div.  477.  92  N.  Y.  S.  454,  102  App.  Div.  251; 

See  Anderson  v.  Daley,  56  N.  Y.  S.  Robertson    v.    De    Brulatour,    188 

511.     It  is  necessary  to  allege  and  N.  Y.   301;  Clemens  v.  Heckscher, 

prove  that  the  trustee  has  been  re-  185  Pa.  St.  476;  nor  is  a  substituted 

quested  to  bring  suit  and  has  re-  trustee.     Safe  Deposit  &  Tr.  Co.  v. 

fused.    Ibid.    And  even  when  this  is  Cahn,  102  Md.  530;  Leake  v.  Watson, 

552 


CHAP.  XI.]  POSSESSION    AND    MANAGEMENT.  [§  32<S. 

Pennsylvania,  however,  the  action  of  ejectment  is  an  equitable 
action,  and  the  cestui  que  trust  may  maintain  the  suit  if  he  is 
entitled  to  possession,  or  it  may  be  maintained  by  the  trustee.' 
In  a  few  States  there  are  statutes  or  codes  which  enact  that 
parties  beneficially  interested  in  the  subject-matter  of  the  ^uit 
shall  be  made  the  parties'  plaintiffs;  but  the  right  or  duty  of 
trustees,  or  persons  holding  the  legal  title  in  a  fiduciary  capac- 
ity, to  sue  is  generally  provided  for.-  Merely  nominal  trus- 
tees, as  officers  of  a  town  or  parish,  cannot  sue  in  their  own 
name.^  (a) 

*  School  Dir.  v.  Dunkleberger,  6  Barr,  29;  Presbyterian  Cong.  v.  John- 
ston, 1  Watts  &  S.  56;  Kennedy  v.  Fury,  1  Dall.  76;  Hunt  v.  Crawford,  3  Pa. 
426;  Caldwell  v.  Lowden,  3  Brews.  63.  [  Chamberlain  t^.  Maynes,  180  Pa. 
St.  39.] 

2  See  Codes  of  New  York  and  Ohio;  McGill  v.  Doe,  9  Ind.  306.  [  See 
Cunningham  v.  Bank  of  Nampa,  13  Idaho,  167;  Wright  i'.  Conservative  Inv. 
Co.,  49  Or.  177;  McDevitt  v.  Bryant,  104  Md  187;  Zion  Church  v.  Parker, 
114  Iowa,  1;  Pyle  v.  Henderson,  55  W.  Va.  122;  First  Nat.  Bank  v.  Hum- 
mel, 14  Colo.  259.  As  to  whether  or  not  the  cestuis  should  be  parties  to 
suits  by  or  against  trustees,  see  infra  §  873,  note.] 

'  Regina  v.  Shee,  4  Q.  B.  2;  Manchester  v.  Manchester,  17  Q.  B.  S59; 
Queen  v  Commissioners,  15  Q.  B.  1012;  Connor  v.  New  Albany,  1  Blackf. 
88. 

58  Conn.  332;  First  Nat.  Bank  v.  life  beneficiary  to  protect  the  inter- 
Broadway  Bank,  156  N.  Y.  459,  467.  ests  of  the  remainder-man  in  per- 
And  equity  will  take  jurisdiction  and  eonalty,  see  Leake  v.  Watson,  58 
give  relief,  although  the  trustee  has  Coim.  332. 

an   adequate  remedy  at  law.     Safe  (a)    A  trustee  who  owes  his  ap- 

Dep.  &  Tr.  Co.  v.  Cahn,   102  Md.  pointment   to   a   court    of   another 

530.  State  than  that  in  which  he  brings 

The  trustee  is  not  estopped  from  suit  may  nevertheless  sue  strangers 
setting  up  any  defence  which  the  to  the  trust,  since  he  sues  as  legal 
cestuis,  were  they  in  person  defend-  owner,  not  in  a  representative  ca- 
ing  the  action,  might  properly  urge  pacity.  Toronto  Gen.  Tr.  Co.  v.  C. 
in  their  own  behalf.  Thus  in  de-  B.  &  Q.  R.  Co.,  123  N.  Y.  37;  Pen- 
fence  to  a  foreclosure  proceeding  up-  nington  v.  Smith,  69  Fed.  188;  Iowa 
on  a  mortgage  given  by  himself,  he  &  Cal.  Land  Co.  v.  Hoag,  132  Cal. 
is  not  estopped  to  set  up  that  he  had  627;  Bradford  v.  King,  IS  R.  I.  743. 
no  power  to  mortgage.  Wagnon  v.  But  see  Bangs  i'.  Berg,  82  Iowa,  350; 
Pease,  104  Ga.  417.  Hale  v.  Harris,  112  Iowa,  372. 

Afl  to  the  duty  of  a  trustee  for  the 

553 


§  329.]  PROPERTIES    OF   THE   TRUST    ESTATE.    \  [CHAP.  XI. 

§  329.  Whether  the  trustees  are  entitled  to  the  possession, 
control,  and  management  of  real  estate,  as  against  the  cestui 
que  trust,  depends  upon  the  whole  scope  of  the  settlement,  and 
the  nature  of  the  duties  which  the  trustees  are  required  to  per- 
form. A  fund  in  trust  for  the  sole  use  of  a  person,  with  power 
to  dispose  of  the  fund  by  will,  does  not  give  the  cestui  a  right 
to  recover  possession  of  the  fund  from  the  trustee.^  If  the 
entire  interest  is  vested  in  the  trustees,  and  they  are  to  manage 
the  property,  keep  it  insured,  and  pay  taxes,  premiums,  annu- 
ities, and  other  charges  out  of  the  income,  the  court  will  imply 
that  the  trustees  are  to  have  the  possession,  and  will  not  take 
it  from  them,  unless  there  is  some  very  clear  intention  expressed 
to  control  such  directions."  (a)  And  the  trustees  may  purchase 
whatever  is  necessary,  and  cultivate  the  land  instead  of  renting 
it.^  If  the  cestui  que  trust,  or  tenant  for  life,  is  a  female,  the 
court  will  continue  the  possession  in  the  trustees  for  her  pro- 
tection in  case  of  marriage.'*  So,  if  the  trustees  themselves  have 
a  beneficial  interest,  or  a  reversion  or  remainder  after  the  death 
of  the  tenant  for  life,  the  court  will  continue  the  possession  in 
them.^  If,  however,  the  plain  intention  of  the  settlement  is 
that  the  cestui  que  trust  is  to  have  the  possession,  then  all  other 

1  Barkley  v.  Dosser,  15  Lea  (Tenn.)  .529. 

*  Tidd  V.  Lister,  3  Madd.  429;  Naylor  v.  Arnitt,  1  R.  &  M.  501;  Young 
V.  Miles,  10  B.  Mon.  290;  Blake  v.  Bunbury,  1  Ves.  Jr.  194,  514;  4  Bro.  Ch. 
21;  Jenkins  v.  Milford,  IJ.  &  W.  629;  Moseley  v.  Marshall,  22  N.  Y.  200; 
Marshall  v.  Sladen,  4  De  G.  &  Sm.  468;  Matthews  v.  McPherson,  65  N.  C. 
189. 

»  Mayfield  v.  Kegour,  21  Md.  241. 

*  Ibid.;  Weekham  v.  Berry,  55  Penn.  St.  70. 
'  Ibid. 

(a)    Now,  in  England,  the  Set-  personally  to  exercise  these  powers 

tied  Land  Acts  have  granted  such  and    discharge    these   duties    when 

powers  to  and  imposed  such  duties  there  is  no  urgent  counter  reason. 

on    tenants    for    Ufe    that,    if    the  See    In    re   Wythes,    [1893]   2   Ch. 

estate    and    trustees    can    be    well  369;    In   re   Bagot,    [1894]    1    Ch. 

protected  by  reasonable  safeguards,  177  ;  In  re  Newen,  2  id   297;  In  re 

an  equitable  tenant  for  life  is  to  be  Bentley,  54  L.  J.  Ch.  782. 
let    into    possession    and    enabled 

554 


CHAP.  XI.]  ACTION  —  CONTROL  —  RIGHTS.  (§  330. 

considerations  must  give  way;  as,  if  it  is  plain  that  the  settlor 
intended  the  estate  to  be  a  place  of  residence  for  the  cestui  que 
trust,  the  intention  must  be  carried  out.'  If  the  tenant  for  life 
takes  a  legal  estate,  subject  to  a  charge,  he  will  of  course  be 
entitled  to  the  possession,  so  long  as  he  discharges  all  incum- 
brances thus  put  upon  the  estate.^  But  if  the  tenant  for  life 
allows  the  annuities  or  other  charges  to  fall  in  arrears,  the 
trustees  must  take  possession  for  the  security  of  the  annuitants, 
and  must  continue  the  possession  until  ample  security  is  made 
for  the  future.^  Security  may  be  required  in  any  case  where 
the  tenant  for  life  is  let  into  possession.'' 

§  330.  The  trustee  is  entitled  to  the  possession  of  all  personal 
securities,  such  as  bonds,  notes,  mortgages,  and  certificates  of 
stocks,  belonging  to  the  trust  estate;  and  he  may  maintain  an 
action  for  their  delivery,  even  against  the  cestui  que  trusts  All 
personal  actions  for  injury  to  the  personal  property,  or  for  its 
detention  or  conversion,  such  as  trespass,^  trover,^  detinue,*  or 
replevin,^  must  be  brought  in  the  name  of  the  trustee,  although 

'  Tidd  V.  Lister,  5  Madd.  432;  Campbell  v.  Prestons,  22  Grat.  396. 

«  Denton  t;.  Denton,  7  Beav.  388;  Blake  v.  Bunbury,  1  Ves.  Jr.  194; 
Tidd  V.  Lister,  5  Madd,  432. 

=>  Ibid. 

*  Ibid.;  Pugh  v.  Vaughn,  12  Beav.  517;  Langston  v.  OUivant,  Coop.  33; 
Baylies  v.  Baylies,  1  Col.  137. 

'  Jones  V.  Jones,  3  Bro.  Ch.  80;  Poole  i'.  Pass,  1  Beav.  600;  Beach  v. 
Beach,  14  Vt.  28;  Gunn  t'.  Barrow,  17  Ala.  743;  White  v.  Albertson,  3  Dev. 
241;  Guphill  v.  Isbell,  8  Rich.  L.  463;  Presley  v.  Stribling,  24  Miss.  257; 
Pace  V.  Pierce,  49  Mo.  393;  Ryan  v.  Bibb,  46  Ala.  343;  Western  R.  R  Co. 
V.  Nolan,  48  N.  Y.  513. 

«  McRaeny  v.  Johnson,  2  Fla.  520. 

'  Hower  v.  Geesaman,  17  Serg.  &  R.  251;  Poage  t-  Bell,  8  Leigh,  604; 
Coleson  i'.  Blanton,  3  Hayw.  152;  Guphill  v.  Isbell,  8  Rich.  L.  463;  Thomp- 
son V.  Ford,  7  Ired.  418;  Schley  v.  Lyons,  6  Ga.  530. 

«  Jones  V.  Strong,  6  Ired.  367;  Murphy  v.  Moore,  2  Ired.  Eq.  118;  Cham- 
bers V.  Mauldin,  4  Ala.  477;  Parsons  v.  Boyd,  20  Ala.  112;  Stoker  v.  Yelby, 
11  Ala.  327;  Baker  v.  Washington,  3  Stew.  &  P.  142;  Newman  v.  Mont- 
gomery, 5  How.  (Miss.)  742. 

"  Presley  v.  Stribling,  24  Miss.  527;  Daniel  v.  Daniel,  6  B.  Mon. 
230. 

555 


§  330.]  PROPERTIES   OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

the  possession  is  in  the  cestui  que  trust}  (a)  and  although  there 
may  be  a  defect  in  the  title  of  the  trustee;^  for  the  possession  of 
the  cestui  que  trust  is  the  possession  of  the  trustee,  and  in  law 
he  is  not  allowed  to  dispute  the  title  or  possession  of  his  trustee.' 
The  action  of  assumpsit  is  an  equitable  action,  and,  generally, 
if  a  promise  is  made  to  one  for  the  benefit  of  another,  the  person 
for  whose  benefit  the  promise  is  made  may  bring  the  action;  but 
if  a  promise  is  made  to  a  trustee  for  the  benefit  of  the  cestui  que 
trust,  the  trustee  alone  can  sue.^  So  only  those  parties  can  sue 
on  a  contract  with  whom  it  is  made,  unless  it  is  negotiable 
paper;  therefore,  substituted  trustees  cannot  sue  upon  a  contract 
made  with  their  predecessors  in  the  trust,  but  the  suit  must  be 
in  the  names  of  the  parties  with  whom  it  was  made,  for  the 
benefit  of  the  estate.^  (b)  Generally,  all  notices  and  tenders  ® 
must  be  made  to  the  trustees;  and  they  must  use  all  due  dili- 
gence in  prosecuting  suits  in  favor  of  the  estate  and  of  the  cestui 
que  trust,  and  they  must  take  the  proper  care  in  defending  such 
suits;  and  if  appeals  are  taken  from  decrees  or  judgments  in 
favor  of  the  estate,  or  of  the  cestui  que  trust,  they  must  duly 
support  the  rights  of  the  cestui  que  trust  in  whatever  court  the 
case  may  be  carried.^  If  the  cestui  que  trust  brings  an  action  in 
the  name  of  the  trustee,  the  trustee  may  insist  upon  indemnity 

1  Jones  V.  Cole,  2  Bail.  330;  Wynn  v.  Lee,  5  Ga.  236. 

«  Rogers  v.  White,  1  Sneed,  69. 

»  White  V.  Albertson,  3  Dev.  241.    [  Barker  v.  Furlong,  [1891]  2  Ch.  172.] 

*  Treat  v.  Stanton,  14  Conn.  44.5;  Porter  v.  Raymond,  53  N.  H.  .519. 
[  See  1  Ames  on  Trusts,  (2d  ed.)  258.] 

«  Binney  v.  Plumly,  5  Vt.  500;  Ingersoll  v.  Cooper,  5  Blackf.  420;  Davant 
V.  Guerard,  1  Spear,  242;  Wake  v.  Tinkler,  16  East,  36. 

«  Cahoon  v.  Hollenback,  16  Serg.  &  R.  425;  Henry  v.  Morgan,  2  Binn. 
497. 

">  Wood  V.  Bumham,  6  Paige,  513. 

(a)    But   a  cestui    who  has  the  (6)    The  substituted  trustee  has 

right  of  possession  may  sue  third  of  course  all  the  rights  of  an  assignee 

persons  for  damages  due  to  disturb-  of  a  chose  in  action,  and  as  such  has 

ance  of  his  possession.    Cape  v.  Ply-  by  statute  in  some  States  been  given 

mouth  Church,  117  Wis.  150;  Thom-  the  right  to  sue  in  his  own  name, 

as  Machine  Co.  v.  Voelker,  23  R.  I.  See  Mass.  R.  L.  [1902]  c.  173,  §  4. 
441. 

556 


CHAP.  XI.]  ACTION  —  CONTROL  —  RIGHTS.  [§  330. 

against  the  costs.'  If  the  trustee  collusively  releases  such  suit 
without  the  consent  of  the  party  beneficially  interested,  the 
court  will  set  aside  the  release.^  So,  if  a  trustee  discharges  a 
debt  or  mortgage  without  payment,  the  court  would  set  aside 
the  discharge;^  (a)  and  if  a  trustee  refuses  to  bring  a  suit,  or  to 
allow  his  name  to  be  used,  equity  will  compel  him  to  take  such 
steps  as  the  interest  of  the  estate  and  of  the  cestui  que  trust 
requires.^  In  all  such  suits  in  the  name  of  the  trustee,  a  debt 
due  from  the  cestui  que  trust  cannot  be  set  off.^    If  a  trustee  sue 


»  Ins.  Co.  V.  Smith,  11  Penn.  St.  120;  Annosley  v.  Simeon,  4  Madd. 
390;  Roden  v.  Murphy,  10  Ala.  804.  [  Falmouth  Bank  v.  Cape  Cod  Canal 
Co.,  166  Mass.  550,  .567.] 

*  Anon.  Salk.  260;  Bauerman  v.  Radenius,  7  T.  R.  670;  Legh  v.  Legh,  1 

B.  &  P.  447;  Payne  v.  Rogers,  Doug.  407;  Manning  v.  Cox,  7  Moore,  617; 
Hickey  v.  Burt,  7  Taunt.  48;  Barker  v.  Richardson,  1  Y.  &  J.  362;  Roden 
V.  Murphy,  10  Ala.  804;  Greene  v.  Beatty,  Coxe,  142;  Kirkpatrick  v.  Mc- 
Donald, 11  Penn.  St.  387. 

'  Woolf  V.  Bate,  9  B.  Mon.  210. 

*  Blin  V.  Pierce,  20  Vt.  25;  Chisholm  v.  Newton,  1  .\Ia.  371;  Robinson 
V.  Mauldin,  11  Ala.  978;  Welch  v.  Mandeville,  1  Wheat.  233;  Parker  v. 
Kelly,  10  Sm.  &  M.  184;  McCullum  v.  Coxe,  1  Dall.  139.  [  Sharpe  v.  San 
Paulo  Brazilian  Ry.  Co.,  8  Ch.  .597;  Yeatman  v.  Yeatman,  7  Ch.  Div.  210; 
Meldrum  v.  Scorer,  56  L.  T.  741.] 

*  Wells  V.  Chapman,  4  Sandf.  Ch.  312;  Campbell  v.  Hamilton,  4  Wash. 

C.  C.  93;  Woolf  t;.  Bates,  9  B.  Mon.  211;  Beale  v.  Coon,  2  Watts,  183; 

(o)  So  too  of  a  judgment  binding  of  trustee  to  protect  the  rights  of  the 
the  trust  property,  if  the  judgment  cestui.  Kaylor  v.  Hiller,  72  S.  C.  433. 
was  obtained  by  collusion  between  In  an  Alabama  case  where  there 
the  trustee  and  the  creditor.  Snell-  was  a  proceeding  at  law  for  the  tak- 
ing V.  Am.,  etc.,  Mort.  Co.,  107  Ga.  ing,  by  right  of  eminent  domain,  of 
852.  But  the  mere  fact  that  the  land  held  in  trust  for  a  railroad,  the 
trustee  has  allowed  the  judgment  to  cestui,  whose  defence  to  the  taking 
be  entered  by  default  is  not  suf-  was  that  it  had  already  devoted  the 
ficient  to  have  it  set  aside  in  the  ab-  land  to  a  public  purpose,  was  al- 
sence  of  other  evidence  of  collusion,  lowed  to  present  this  defence  by  a 
Sanders  v.  Houston  Guano  Co.,  107  bill  in  equity  for  an  injunction 
Ga.  49.  against  the  suit  at  law  which  had 

It  has  been  held  that  the  trial  been   brought   against   the  trustee, 

judge  may,  of  his  ovm  motion,  order  Birmingham,  etc.,  Co.  v.   Louisville, 

a  trustee,  who  has  been  joined  as  etc.,  R.  Co.,  152  Ala.  422. 
defendant,  to  answer  in  his  capacity 

557 


§  332.]  PROPERTIES   OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

for  matters  pertaining  to  the  trust  estate,  a  private  debt  due  from 
the  trustee  cannot  be  set  off  .^  [Under  the  Massachusetts  statute] 
a  trustee  cannot  set  off  against  the  assignee  of  the  cestui  a  debt 
for  money  lent  by  him  to  the  cestui  before  his  appointment  as 
trustee.^ 

§  331.  The  trustee,  being  liable  for  a  breach  of  the  trust,  if 
he  permits  any  misapplication  of  the  funds  should  of  course 
have  the  possession  and  control  of  all  personal  property.  So 
all  the  duties  and  privileges  which  attach  to  such  property  per- 
tain to  him.  If  the  property  consists  of  stocks  in  corporations, 
he  may  attend  corporate  meetings,  vote,  and  hold  office  by 
virtue  of  such  stock.^  So  the  trustee  is  rated  or  assessed  for 
taxes,  and  must  see  that  the  taxes  upon  the  trust  property  are 
paid.  The  statutes  of  the  various  States  determine  the  local- 
ities where  such  property  shall  be  assessed:  real  estate  is  gen- 
erally assessed  in  the  parish,  town,  or  county  where  it  is  situated; 
and  personal  property,  either  in  the  place  of  the  domicil  of  the 
trustee  or  of  the  cestui  que  trv^t,  as  the  statutes  of  a  State  may 
direct.  In  the  absence  of  a  statute,  the  law  would  look  upon  the 
trustee  as  the  owner,  and  assess  the  property  at  his  domicil.*  (a) 

§  332.  The  trustee  must  prove  a  debt  against  a  bankrupt 
debtor  of  the  estate,  as  he  is  the  person  to  receive  the  divi- 

Tucker  v.  Tucker,  4  B.  &  Ad.  745;  Porter  v.  Morris,  2  Harr.  509.  [  1  Ames 
on  Trusts  (2d  ed.),  270.] 

1  Page  V.  Stephens,  23  Mich.  357.  [  See  Ames'  Cases  on  Trusts  (2d  ed.), 
270.] 

2  Abbott  V.  Foote,  146  Mass.  333.    (  R.  L.  (1902)  c.  174,  §  6.] 

'  Matter  of  Barker,  6  Wend.  509;  Re  Phoenix  Life  Assur.  Co.,  2  John.  & 
H.  279. 

*  Latrobe  v.  Baltimore,  19  Md.  13;  Green  v.  Mumford,  4  R.  I.  313;  and 
see  the  statutes  of  the  various  States. 

(a)    If  there   are   two   or   more  151  and  note.     But  the  matter  of 

trustees  residing  in  different  places  taxation  of  trust  property  has  been 

the  tax  is  divided,  the  trustees  being  largely  dealt  with  by  statute.     See 

treated  as  equal  owners.     Trustees  Mass.  R.  L.   (1902),  c.  12,  §  23,  cl.  6. 
V.  Augusta,  90  Ga.  634,  20  L.  R.  A. 
558 


CHAP.  XI.]     salp:  and  devise  of  trust  property.       (§  334. 

dend;^  but  in  special  cases  the  concurrence  of  the  cestui  que 
trust  may  be  required,  as  where  he  may  have  a  right  to  receive 
the  payment.^ 

§  333.  In  England,  trustees  had  at  common  law  the  right  to 
vote  for  local  officers  and  for  members  of  parliament,  by  virtue 
of  the  qualification  conferred  upon  them  by  the  trust  property, 
if  it  was  sufficient  in  amount.  Statutes  have,  however,  changed 
the  common  law,  and  given  the  right  in  most  cases  to  the  cestui 
que  trust.  In  the  United  States,  property  qualifications  of 
voters  are  generally  abrogated.' 

§  334.  Trustees  of  real  or  personal  estate  may,  at  law,  sell, 
convey,  assign,  or  incumber  the  same,  as  if  they  were  the  bene- 
ficial owners,*  and  each  of  several  trustees  may  exercise  all  his 
rights  of  ownership.  If  the  trustees  are  joint-tenants,  each  may 
receive  the  rents,^  and  each  may  sever  the  joint-tenancy  by  a 
conveyance  of  his  share,^  and  each  may  collect  the  dividends 
on  stocks,  and  on  the  death  of  one,  the  survivor  may  sell  the 
whole  estate.^  The  general  power  of  a  trustee  to  sell  and  convey 
the  estate  is  co-extensive  with  his  ownership  of  the  legal  title; 
and  this  general  power  over  the  legal  title  is  entirely  distinct 
from  the  execution  of  a  special  power  given  in  respect  to  the 
sale  of  an  estate.  Though  the  trustee  may  thus  sell,  even  in 
breach  of  the  trust,  a  conveyance  without  consideration  will  not 
injure  the  cestui  que  trust;  as  the  grantee,  who  is  a  volunteer, 
will  hold  upon  the  same  trusts  as  the  trustee  held,  and  if  the 
purchaser  for  a  valuable  consideration  have  notice  of  the  trust 

•  Ex  parte  Green,  2  Dea.  &  Ch.  116. 

*  Ex  parte  Dubois,  1  Cox,  310;  Ex  parte  Butler,  Buck,  426;  Ex  porta 
Gray,  4  Dea.  &  Ch.  778;  Ex  parte  Dickenson,  2  Dea.  &  Ch.  520. 

'  See  5  Ired.  Eq.  Appendix;  4  Kent,  Com.  195. 

*  Shortz  V.  Unanpst,  3  Watts  &  S.  55;  Canoy  v.  Troutman,  7  Ired.  155. 
[  Marx  V.  Clisby,  130  Ala.  502.] 

'  Townley  v.  Sherborne,  Bridg.  35. 

•  Boursot  V.  Savage,  L.  R.  2  Eq.  134. 
^  Saunders  t;.  Schmaelzle,  49  Cal.  59. 

559 


§  335.]  PROPERTIES    OF    THE    TRUST    ESTATE.         [CHAP.  XI. 

he  will  still  hold  the  estate  upon  trust.^  In  New  York,  however, 
a  statute  has  converted  the  trustee's  ownership  of  the  legal  title 
into  a  power,  or  power  in  trust;  ^  and  where  a  trust  is  expressly 
created  by  a  written  instrument,  every  sale  in  breach  or  contra- 
vention of  the  trust  is  declared  to  be  absolutely  void,  even  if  the 
sale  is  under  the  sanction  of  a  court.^  (a)  \Vhether  a  trustee 
intends  to  convey  an  estate  is  frequently  a  question  made  upon 
conveyances,  and  it  has  been  determined  that  a  general  assign- 
ment of  all  the  trustee's  estates,  for  the  benefit  of  his  creditors, 
does  not  pass  estates  held  by  him  in  trust.* 

§  335.  As  among  the  incidents  of  the  trustee's  legal  title  in 
the  trust  estate  is  his  power  to  sell  it,  so  he  may  devise  it  by  his 
last  will  and  testament.  The  principal  question  that  here  arises 
is,  whether  the  words  of  the  will  of  a  trustee  embrace  estates 
held  by  him  in  trust,  for  a  trust  estate  will  not  in  all  cases  pass 
by  the  same  words  as  would  pass  the  beneficial  ownership ;  for 
wherever  an  estate  passes,  not  by  operation  of  law,  but  by  the 
intention  of  any  one,  it  is  necessary  to  find  the  intention  from 
the  instrument  under  the  circumstances  in  which  it  is  made; 
and  an  intention  to  devise  a  trust  estate  is  not  so  readily  in- 
ferred as  an  intention  to  devise  a  beneficial  estate.  (6)     If  the 

1  See  ante,  §  321. 

»  Anderson  v.  Mather,  44  N.  Y.  249;  New  York,  &c.,  v.  Stillman,  30 
N.  Y.  174;  Fitzgerald  v.  Topping,  48  N.  Y.  441;  Fellows  v.  Heermans,  4 
Lans.  230;  Martin  ;;.  Smith,  56  Barb.  600;  Critton  v.  Fairchild,  41  N.  Y. 
289.  The  law  is  the  same  in  Michigan.  Palmer  v.  Wilkins,  24  Mich.  328. 
See  Jones  v.  Shaddock,  41  Ala.  262;  1  Rev.  Stat.  330,  §  65;  Briggs  v.  Palmer, 
20  Barb.  392;  Briggs  v.  Davis,  20  N.  Y.  15;  21  N.  Y.  574.  [  IV  Consol. 
Laws  (1909),  p.  3392,  §  105.] 

'  Cruger  v.  Jones,  18  Barb.  468;  Lahens  v.  Dupasseur,  56  Barb.  256. 

*  Ludwig  V.  Highley,  5  Barr,  132;  Abbott,  Pet'r,  55  Maine,  480. 

(a)    Several    other    States   have  §  2091;  Kansas  Gen.  Stat.   (1909), 

similar  statutes.  Mich.  Comp.  Laws  §  9698;    Ind.  Burns'    Stat.   (1908), 

(1897),   §  8849;   Minn.  Rev.   Laws  §4016. 

(1905),  §   3259;    Mont.    Civ.    Code  (h)    This  question  has  but  little 

(1907),  §  4549;  No.  Dak.  Civ.  Code,  practical  importance  in  the  United 

(1905),  §  4836;  So.  Dak.  Civ.  Code  States.    See  infra,  §  341. 
(1908),   §   317;    Wis.  Stat.    (1898), 
560 


tllAl'.  XI.]  DEVISE    OF   TRUST    PROPERTY.  [§  330. 

trust  is  only  a  personal  one,  the  donor  using  no  words  recjuiring 
continuance  of  the  trust  beyond  the  life  of  the  immediate  trus- 
tee, the  estate  cannot  be  devised  by  the  trustee,  but  ceases  at 
his  death.^ 

§  33G.  An  assignment  in  general  words  by  a  trustee  of  all  his 
estate  for  his  creditors  will  not  pass  a  trust  estate,  for  the  reason 
that  the  court  will  not  presume  that  the  trustee  intended  to 
commit  a  breach  of  trust  ;^  for  a  similar  reason  it  has  at  times 
been  said  that  a  devise  of  all  a  trustee's  estates  in  general  words 
would  not  operate  upon  estates  that  he  held  in  trust,  unless 
there  apj)eared  a  positive  intention  that  they  should  so  pass.' 
The  question  was  finally  considered  by  Lord  Eldon;  and  after 
a  careful  examination,  the  rule  was  declared  to  be,  that  "where 
the  will  contained  words  large  enough,  and  there  was  no  expres- 
sion authorizing  a  narrower  construction,  nor  any  such  dispo- 
sition of  the  estate  as  it  was  unlikely  a  testator  would  make  of 
property  not  his  own,  in  such  case  the  trust  property  would 
pass."  "*  ]Mr.  Hill  states  the  rule,  "that  a  general  devise  of  real 
estate  will  pass  estates  vested  in  the  testator  as  trustee  or 
mortgagee,  unless  a  contrary  intention  can  be  collected  from 
the  expressions  of  the  will,  or  from  the  purposes  or  limitations 
to  which  the  devised  lands  are  subjected."  ^  This  general  rule 
is  acted  upon  in  the  United  States.® 

1  Hinckley  v.  Hinckley,  79  Maine,  320. 

2  Cook  V.  Tullis,  18  Wall.  332;  Kelly  v.  Scott,  49  N.  Y.  595;  In  re  McKay, 
1  Lowell,  345;  Chase  v.  Chapin,  130  Mass.  128.  [  1  Ames'  Cases  on  Trusts, 
(2d  ed.)  316.] 

»  Casborne  v.  Scarfe,  1  Atk.  605;  Strode  v.  Russell,  2  Vera.  625;  Leeds 
V.  Munday,  3  Ves.  348;  Ex  parte  Sergison,  4  Ves.  147;  Ex  parte  Bowes,  cited 
note,  1  Atk.  605;  Pickering  v.  Vowles,  1  Bro.  Ch.  198;  Att.  Gen.  v.  Buller, 
5  Ves.  340. 

*  Braybrooke  v.  Inskip,  8  Ves.  436;  Roe  v.  Reade,  8  T.  R.  118;  Ex  parte 
Morgan,  10  Ves.  101 ;  Langford  t;.  Auger,  4  Hare,  313;  Linsell  t^.  Thacher,  12 
Sim.  178;  Ex  parte  Shaw,  8  Sim.  159;  Hawkins  v.  Obeen,  2  Ves.  559. 

»  Hill  on  Trustees,  283. 

«  Taylor  i;.  Benham,  5  How.  270;  Heath  v.  Knapp,  4  Barr,  228;  Jack- 
eon  V.  Delancy,  13  Johns.  537;  Hughes  v.  Caldwell,  11  Leigh,  342;  Merritt 
V.  Farmers'  Ins.  Co.,  2  Edw.  Ch.  547;  Ballard  v.  Carter,  5  Pick.  112  ;  Asay 
VOL.  I.  — 36  561 


§  337.]  PROPERTIES    OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

§  337.  Notwithstanding  the  rule,  that  a  trust  estate  will  pass 
by  general  words  in  a  devise,  unless  there  is  something  in  the 
will  to  show  a  contrary  intention,  there  has  continued  to  be  a 
conflict  of  opinion  upon  the  propriety  of  the  rule,  and  more 
conflict  upon  its  application.  But  a  charge  of  debts,  legacies, 
and  annuities  upon  the  estate  devised,  or  a  power  given  to  sell 
it,  is  an  indication  that  the  testator  did  not  intend  that  the 
trust  estate  should  pass  under  the  words  of  his  devise,  for  the 
reason  that  he  could  not  have  intended  that  his  devisee  should 
do  that  with  the  estate  which  would  be  a  breach  of  trust.^  So, 
if  there  is  a  limitation  of  the  estate  in  strict  settlement,  with  a 
great  number  of  complicated  conditions,  contingencies,  re- 
mainders, and  limitations,  it  will  not  be  presumed  that  a  trus- 
tee intended  to  devise  a  dry  trust  in  a  legal  title  upon  such 
terms,  and  the  estate  will  not  pass  under  general  words;  ^  so  if 
the  devise  is  to  A.  in  tail  with  remainder  over  in  strict  settle- 
ment;^ so  a  devise  to  a  testator's  nephews  and  neices  in  equal 
shares  as  tenants  in  common  is  to  a  class  not  ascertained  at  the 
date  of  the  will,  and  will  not  by  general  words  pass  a  trust 
estate.^  So  a  devise  to  a  woman  for  her  separate  use,  imports  a 
beneficial  use,  and  not  a  dry  legal  estate,  and  the  trust  estate 
would  not  pass  to  her  under  general  words.^  But  a  devise  to  a 
woman,  her  heirs  and  assigns,  to  her  and  their  own  sole  and 
absolute  use,  passes  the  estate  for  the  reason  that  there  is  noth- 

V.  Hoover,  5  Barr,  35;  Richardson  v.  Woodbury,  43  Me.  206;  Drane  v. 
Gunter,  19  Ala.  731.     [See  1  Ames'  Cases  on  Trusts,  (2d  ed.)  316.] 

1  Rackham  v.  Siddall,  16  Sim.  297;  1  Mac.  &  G.  607;  Hope  v.  Liddell, 
21  Beav.  183;  Life  Asso.  of  Scotland  v.  SiddaU,  3  De  G.,  F.  &  J.  58;  Wall 
V.  Bright,  1  Q.  &  W.  494;  Leeds  v.  Mimday,  3  Ves.  348;  Ex  parte  Marshall, 
9  Sim.  555;  Re  Morley's  Trusts,  10  Hare,  293;  Sylvester  v.  Jarman,  10  Price, 
78;  Roe  v.  Reade,  8  T.  R.  118;  Att.  Gen.  v.  Buller,  5  Ves.  339;  Ex  parte 
Morgan,  10  Ves.  101;  Ex  parte  Brettell,  6  Ves.  577;  Merritt  v.  Farmers' 
Ins.  Co.,  2  Edw.  Ch.  547. 

*  Braybrooke  v.  Inskip,  8  Ves.  434. 

'  Thompson  v.  Grant,  4  Madd.  438;  Ex  parte  Bowes,  cited  1  Atk.  603; 
Galliers  v.  Moss,  9  B.  &  Cr.  267;  Re  Horsfall,  1  McClel.  &  Y.  292. 

*  Re  Finney's  Est.,  3  Gif.  465. 

»  Lindsell  v.  Thacher,  12  Sim.  178;  the  case  istelf,  not  the  marginai 
note. 

562 


CHAP.  XI.]       DEVISE  OF  TRUST  PROPERTY.  [§  338. 

inf^  inconsistent  with  tlieir  holding  the  absolute  use  in  trust; ' 
and  a  devise  to  A.  and  B.  to  be  equally  divided  between  them, 
as  tenants  in  common,  and  their  respective  heirs,  will  pass  the 
estate.'^  A  devise  of  all  my  estates  will  pass  trust  property.^ 
So  a  devise  to  A.,  his  heirs  and  assigns,  to  and  for  his  and  their 
own  use  and  benefit;'*  and  a  devise  to  A.  and  her  heirs,  to  be 
disposed  of,  by  her  will  or  othen\'ise,  as  she  shall  think  fit,^  will 
pass  trust  property  under  general  words,  for  there  is  no  neces- 
sary breach  of  the  trust. 

338.  The  interest  of  a  mortgagee  in  fee  in  the  mortgaged 
land  stands  upon  a  somewhat  different  ground.  The  mort- 
gagee has  a  debt  due  him  which  is  the  principal  thing,  and  the 
mortgage  is  a  beneficial  interest  in  the  land  as  security  for  the 
debt.  This  interest  generally  goes  with  the  debt.  And  mort- 
gage estates  will  pass  by  a  general  devise,  notwithstanding  a 
charge  of  debts  and  legacies,  if  the  intent  appears,  to  pass  them 
as  securities  for  money .^  But  if  there  are  special  trusts  for  sale, 
or  other  special  charges  annexed  to  the  devise,  inconsistent  with 
the  idea  of  holding  the  estate  as  security  for  money,  it  would 
not  pass  under  a  general  devise.' 

1  Lewis  V.  Mathews,  L.  R.  2  Eq.  177. 

*  Ex  parte  Whiteacre,  cited  Lewin  on  Trusts,  186;  1  Saund.  Uses  &  Tr. 
359;  Re  Morley's  Trusts,  10  Hare,  293. 

*  Braybrooke  v.  Inskip,  8  Ves.  425;  Bangs  t;.  Smith,  98  Mass.  273; 
Amory  v.  Meredith,  7  Allen,  397;  Willard  v.  Ware,  10  Allen,  263;  Stone 
t^.  Hackett,  12  Gray,  237. 

*  Ex  parte  Shaw,  8  Sim.  159;  Bainbridge  v.  Ashburton,  2  Y.  &  C.  347; 
Sharpe  v.  Sharpe,  12  Jur.  598;  Ex  parte  Bret  tell,  6  Ves.  577;  Heath  v.  Knapp, 
4  Barr,  228;  Abbott,  Petitioner,  55  Maine,  580. 

*  Ibid. 

*  Ex  parte  Barber,  5  Sim.  451;  Doe  v.  Benett,  6  Exch.  892;  Re  Cantley, 
17  Jur.  124;  King's  Mort.,  5  De  G.  &  Sm.  644;  Knight  t'.  Robinson,  2  K.  & 
J.  503;  Rippen  v.  Priest,  13  C.  B.  (n.  s.)  508;  Re  Arrowsmith,  4  Jur.  (n.  s.) 
1123;  Mather  v.  Thomas,  6  Sim.  119;  overruling  Galliers  t'.  Moss,  9  B.  & 
C.  267;  Sylvester  v.  Jarman,  10  Price,  78,  and  Re  Cantley,  17  Jur.  124; 
Ballard  v.  Carter,  5  Pick.  112;  Asay  f.  Hoover,  5  Barr,  35;  Richardson  v. 
Woodbury,  43  Maine,  206;  Field's  Mort.,  9  Hare,  414,  overruling  Ben- 
voize  V.  Cooper,  10  Price,  78,  and  in  opposition  to  Doe  v.  Lightfoot,  8  M.& 
W.  553.  ^  Re  Cantley,  17  Jur.  123. 

563 


§  339.]  PROPERTIES    OF   THE    TRUST    ESTATE.         [CHAP.  XI. 

§  339.  In  allowing  a  trust  estate  to  pass  under  general  words 
of  a  devise,  it  is  assumed  that  the  testator  does  not  intend  by 
his  devise  to  commit  a  breach  of  the  trust.  It  is  simply  a  ques- 
tion, whether  the  testator  has  devised,  or  can  or  should  devise, 
a  trust  estate,  or  whether  he  should  allow  it  to  descend  to  his 
heir  or  legal  representatives.  It  was  said  in  Cook  v.  Crawford, 
that  it  was  not  lawful  for  the  trustee  to  dispose  of  the  estate, 
but  that  he  ought  to  permit  it  to  descend ;  that  a  devise  did  not 
differ  from  a  deed  inter  vims;  and  that  it  was  only  a  post  mortem 
conveyance.^  On  the  other  hand,  it  is  said  that  there  is  a  wide 
distinction  between  a  conveyance  and  a  devise.  That  during 
the  trustee's  lifetime  there  was  a  personal  trust  and  confidence 
in  his  discretion,  which  he  could  not  delegate;  that  the  settlor 
could  have  reposed  no  confidence  in  the  heir,  for  he  could  not 
know  beforehand  who  the  heir  would  be;  that  if  the  estate  was 
allowed  to  descend,  it  might  become  vested  in  married  women, 
infants,  bankrupts,  or  persons  out  of  the  jurisdiction  of  the 
court;  and  that  therefore  it  could  not  be  a  breach  of  trust  for  a 
trustee  to  devise  the  estate  by  will  to  persons  capable  of  execut- 
ing it,  or  of  transferring  it  to  other  trustees,^  Mr.  Lewin  con- 
cludes from  these  observations,  that  whether  the  devise  of  the 
trust  estate  is  proper  or  not  depends  upon  the  circumstances  of 
each  case.  If  the  heir  is  a  fit  person  to  execute  the  trust,  the 
testator  ought  not  to  intercept  the  descent  and  pass  the  legal 
estate  to  another,  and  especially  not  to  an  unfit  person.  In 
such  case  the  estate  of  the  testator  might  be  liable  for  the  costs 
of  restoring  the  trust  estate  to  its  proper  channel  or  to  proper 
trustees.  If,  however,  the  heir  is  an  unfit  person,  as  an  infant, 
bankrupt,  insolvent,  lunatic,  married  woman,  or  out  of  the 
jurisdiction,  it  may  be  proper  to  devise  the  estate.^  And  this 
seems  to  be  the  result  of  the  authorities.^ 

1  Cook  V.  Crawford,  13  Sim.  98;  and  see  Beasley  v.  Wilkinson,  13  Jur. 
649. 

*  Titley  v.  Wolstenholme,  7  Beav.  435;  Macdonald  v.  Walker,  14  Beav. 
556;  Wilson  v.  Bennett,  5  De  G.  &  Sm.  479. 

'  Lewin  on  Trusts,  187,  188. 

*  Beasley  v.  Wilkinson,  13  Jur.  649.    [  See  infra,  §  341.] 

564 


CHAP.  XI.]       DEVISE  OF  TRUST  PROPERTY.  [§  340. 

§  340.  It  floes  not  follow  that  the  devisee  can  execute  the 
trust  from  the  fact  that  the  legal  title  is  devised  to  him,  nor 
does  it  follow  that  the  heir  can  execute  the  trust  from  the  fact 
that  the  legal  title  descends  to  him.  How  far  either  can  execute 
the  trust  depends  upon  the  intention  of  the  settlor,  to  be  gath- 
ered from  the  terms  of  the  instrument.^  Thus,  if  an  estate  is 
so  vested  in  A.  that  A.  alone  shall  personally  execute  the  trust, 
neither  the  heir  nor  the  devisee  of  A.  could  execute  it,  although 
holding  the  legal  title.^  As  if  an  estate  is  vested  in  A.  and  his 
heirs  upon  a  trust  to  sell,  and  A.  devises  the  estate,  neither  the 
heir  nor  the  devisee  can  sell:  for  the  heir  has  nothing  in  the 
estate  to  sell,  it  having  gone  to  the  devisee;  and  the  devisee  has 
no  power,  he  not  being  mentioned  in  the  original  settlement.^ 
So,  where  property  was  vested  in  two  trustees,  their  executors 
and  administrators  in  trust,  and  the  surviving  trustee  devised 
the  property  to  A.  and  B.,  and  appointed  A.,  B.,  and  C.  execu- 
tors, the  court  refused  to  hand  over  the  property  to  A.  and  B., 
for  the  reason  that  devisees  were  not  named  as  parties  who 
<:ould  execute  the  trust;  and  the  court  refused  to  hand  it  over 
to  the  executors,  for  the  reason  that  the  legal  title  was  given 
away  from  them;  new  trustees  were  therefore  appointed  to 
receive  the  property  and  execute  the  trust.'*  But  where  the 
word  "assigns"  is  part  of  the  limitation  of  the  estate  to  trus- 
tees, as  where  an  estate  is  vested  in  A.,  his  heirs,  executors, 
administrators,  and  assigjis  in  trust,  and  A.  devises  the  estate, 
the  devisee  may  execute  the  trust,  for  the  reason  that  he  comes 
within  the  limitation  of  the  persons  who  may  take  the  trust 
property   and   execute   the   trust.^     This   principle   has   been 

»  Abbott,  Pet'r,  55  Maine,  580. 

'  Mortimer  v.  Ireland,  6  Hare,  196;  11  Jur.  721;  Ockleston  v.  Heap,  1 
De  G.  &  Sm.  640. 

'  Mortimer  v.  Ireland,  6  Hare,  196;  11  Jur.  721;  Ockleston  v.  Heap, 
1  De  G.  &  Sm.  640;  Cook  v.  Crawford,  13  Sim.  91;  Stevens  v.  Austen,  7 
Jur.  (n.  8.)  873;  Wilson  t-.  Bennett,  5  De  G.  «&  Sm.  475.  [  But  see  Osborne 
V.  Rowlott,  13  Ch.  Div.  774;  In  re  Ingleby  and  Ins.  Co.,  13  L.  R.  Ir.  326.] 

*  /JeBurtt's  Est.,  1  Dr.  319;  Macdonald  v.  Walker,  14  Beav.  556. 

'  Titky  t'.  Wolstenholme,  7  Beav.  425;  Saloway  v.  Strawbridge,  1  K. 
&  J.  37l;7DeG.,  M.  &  G.  594. 

565 


§  341.]  PROPERTIES    OF    THE    TRUST    ESTATE.         [CHAP.  XI. 

doubted  and  criticised/  but  it  seems  to  be  acted  upon  in  the 
English  courts.^ 

§  341.  In  New  York,  Michigan,  Wisconsin,  [Indiana,  Minne- 
sota, and  Kansas]  trust  property,  upon  the  death  of  the  surviv- 
ing trustee,  does  not  descend  to  the  heir,  nor  can  it  be  devised, 
but  it  vests  in  the  court,  and  will  be  administered  by  the  court 
by  the  appointment  of  new  trustees  to  execute  the  trust.^  (a)  In 
the  other  States,  the  trust  estate  descends  to  the  heir,  or  vests 
in  the  devisee,  as  the  legal  title  must  go  somewhere  in  the  ab- 
sence of  a  statute,  upon  the  death  of  the  surviving  trustee.^ 
Courts  in  the  United  States  do  not  have  occasion  often  to  con- 
sider the  question,  whether  the  heir  or  devisee  can  execute  the 
trust,  as  new  trustees  can  be  appointed  in  any  case  at  the  desire 
of  the  parties,  and,  in  many  States,  the  trust  property  may  be 
vested  in  the  new  trustees  by  an  order  of  the  court.    In  most 

*  Ockleston  v.  Heap,  1  De  G.  &  Sm.  642. 

*  Mortimer  v.  Ireland,  6  Hare,  196;  11  Jur.  721;  Ashton  v.  Wood,  3  Sm. 
&  Gif.  436;  Hall  v.  May,  3  K.  &  J.  585;  Lane  v.  Debenham,  11  Hare,  188. 

»  Clark  V.  Crego,  47  Barb.  597;  Hawley  v.  Ross,  7  Paige,  103;  McCos- 
ker  V.  Brady,  1  Barb.  Ch.  329;  People  v.  Morton,  5  Seld.  176;  McDougald 
V.  Caiy,  38  Ala.  320;  Hook  ;;.  Dyer,  47  Mo.  241.  This  rule  is  confined  to 
real  property.  Trusts  in  personal  property  are  governed  by  the  ordinary 
rules  that  apply  to  them  in  other  States.  Bucklin  v.  Bucklin,  1  N.  Y.  Dec. 
242. 

*  Trusts  of  real  estate,  on  the  death  of  the  trustee,  vest  in  the  heir, 
trusts  of  personalty  in  the  executor  or  administrator.  Schenck  v.  Schenck, 
16  N.  J.  Eq.  174.  [  Lawrence  v.  Lawrence,  181  111.  248;  Ewing  v.  Shannahan, 
113  Mo.  188,  201;  State  v.  Miss.  Valley  Trust  Co.,  209  Mo.  472;  Hitch  v. 
Stonebraker,  125  Mo.  128;  Kirkman  v.  Wadsworth,  137  N.  C.  453;  Wood- 
ruff V.  Woodruff,  44  N.  J.  Eq.  349;  Reeves  v.  Tappan,  21  S.  C.  1;  Fisher 
V.  Dickenson,  84  Va.  318;  St.  Stephen's  Church  v.  Pierce,  8  Del.  Ch.  179. 
See  Ames'  Cases  on  Trusts  (2d  ed.),  345,  346  and  notes.] 

(a)  IV  N.Y.Consol.  Laws  (1909),  Leach,  91  Cal.   191.     In  Alabama, 

p.  2846,  §  20,  p.  3395,  §  111;  Mich,  the  title  does  not  descend  but  rests 

Comp.   Laws  (1897),   §  8852;  Wis.  in  abeyance  until  the  appointment 

Stat.    (1898),   §  2094;    Bums'   Ind.  of  a  new  trustee.     Ala.  Civ.  Code 

Stat.    (1908),   §  4021;   Minn.  Rev.  (1907),  §  3415;  Lecroix  v.  Malone, 

Laws   (1905),    §   3262;    Kan.    Gen.  157  Ala.  434. 
Stat.   (1909),   §  9703;  see  Dyer  v. 

566 


CHAP.  XI.]         DEVOLUTION    OF   THE    TRUST    ESTATE.  [§  343. 

cases,  it  would  simply  be  a  question  whether  the  words  of  the 
will  were  comprehensive  enough  to  pass  the  tru.st  estate,  or 
whether  it  had  descended  to  the  heir;  and  this  question  would 
be  important  only  in  determining  who  should  make  a  convey- 
ance of  the  trust  property  to  the  new  trustees,  if  it  became 
necessary  that  a  conveyance  should  be  made,  (a) 

§  342.  If  an  owner  of  real  estate  contracts  to  sell  it,  he  be- 
comes a  trustee  of  the  legal  title  for  the  vendee;  and  if  he  dies 
before  conveying  the  legal  title,  it  will  descend  to  his  heir  or 
heirs,  as  the  legal  title  must  vest  somewhere;  and  so  he  may 
devise  it;  and  the  heir,  in  case  it  descends,  and  the  devisee,  in 
case  it  is  devised,  may  be  called  upon  to  convey  it  to  the  vendee.* 
In  Massachusetts,  there  is  a  statute  authorizing  the  vendor's 
executor  or  administrator  to  convey  such  estate,  under  the 
direction  of  the  court  of  probate.^ 

§  343.  Trust  property  is  generally  limited  to  trustees,  as 
joint-tenants;  and  if  by  the  terms  of  the  gift  it  is  doubtful, 
whether  the  trustees  take  as  joint-tenants,  or  tenants  in  com- 
mon, courts  w^ill  construe  a  joint-tenancy  if  possible,  on  account 
of  the  inconvenience  of  trustees  holding  as  tenants  in  common ; 
and,  where  statutes  have  abolished  joint-tenanc}',  an  exception 
is  generally  made  in  the  case  of  trustees.  And  courts  will  not 
allow  a  process  for  the  partition  of  a  trust  estate.'  Therefore, 
upon  the  death  of  one  of  the  original  trustees,  the  whole  estate, 
whether  real  or  personal,  devolves  upon  the  survivors,  and  so 
on  to  the  last  survivor;  and  upon  the  death  of  the  last  sur- 
vivor, if  he  has  made  no  disposition  of  the  estate  by  will  or 
otherwise,  it  devolves  upon  his  heirs  if  real  estate,  and  upon 

»  Wall  V.  Bright,  1  J.  &  W.  494;  Read  i'.  Read,  8  T.  R.  118. 

»  Gen.  Stat.  c.  117;  §§  5  and  6;  Reed  r.  Whitney,  7  Gray,  533.  [  Rev. 
Laws  (1902),  c.  148,  §  1.] 

'  Baldwin  v.  Humphrey,  44  N.  Y.  609;  Saunders  i'.  Schmaelzle,  49  CaL 
59. 

(a)  See  supra,  §  269,  and  notes. 

567 


§  344.]  PROPERTIES    OF    THE    TRUST    ESTATE.         [CHAP.  XI. 

his  executors  or  administrators  if  it  is  personal  estate.'  The 
title  in  the  surviving  trustee  is  complete,  and  no  breaches  of 
trust  after  the  death  of  his  cotrustees  can  be  charged  upon 
their  estate;^  nor  can  the  representatives  of  his  cotrustees  inter- 
fere with  his  management  of  the  trust  estate,  even  if  he  is  insolv- 
ent or  unfit  for  the  trust.^  The  cestui  que  trust  alone  can  interfere 
or  apply  to  the  court  for  redress  or  relief.  So  all  rights  of  action 
are  in  the  surviving  trustee,  and  he  may  sue  in  his  own  name  or  as 
survivor,  according  as  the  cause  of  an  action  accrued  before  or 
after  the  death  of  his  cotrustees;  ^  and,  in  case  of  his  death,  his 
executor  or  administrator  may  continue  the  action.^  The  rule 
is  that  actions  must  be  brought  in  the  names  of  the  parties  to 
the  contract.® 

§  344.  So  absolute  is  the  rule  that  the  heir  or  administrator 
takes  the  trust  property  upon  the  death  of  the  last  surviving 
trustee,  that  a  husband,  as  administrator  of  his  wife,  takes  the 
personal  property  that  she  held  in  trust,  but  he  must  hold  it 
upon  the  origitial  trust.^  In  England,  the  heir  in  case  of  real 
estate  in  trust,  or  the  executor  in  case  of  personal,  is  competent 
to  administer  and  execute  the  trusts,  but  they  cannot  execute 

1  Whiting  V.  Whiting,  4  Gray,  236;  Moses  v.  Murgatroyd,  1  Johns.  Ch. 
119;  De  Peyster  v.  Ferrars,  11  Paige,  13;  Shook  v.  Shook,  19  Barb.  653; 
Shortzt;.  Unangst,  3  W.  &  S.  45;  Gray  v.  Lynch,  8  Gill,  404;  Mauldin  v. 
Armstead,  14  Ala.  702;  Powell  v.  Knox,  16  Ala.  364;  Richeson  v.  Ryan,  15 
111.  13;  Stewart  i;.  Pettus,  10  Mo.  755;  Jenks?;.  Backhouse,  1  Binn.  91;  King 
V.  Leach,  2  Hare,  59;  Watkins  y. Specht,  7  Coldw.  585;  Webster?;.  Vander- 
venter,  6  Gray,  429.  [  See  1  Ames  on  Trusts(  2d  ed.),  346.  Except  as 
otherwise  provided  by  statute.] 

2  See  post,  §  426.  [  Re  Palk,  41  W.  R.  28;  Head  v.  Gould,  [1898]  2  Ch. 
250.] 

3  Shook  V.  Shook,  19  Barb.  653. 

*  Richeson  v.  Ryan,  15  III.  13;  Wheatley  v.  Boyd,  7  Exch.  20.  [  Maffet 
V.  Or.  &  C.  R.  Co.,  46  Or.  443.] 

6  Nichols  V.  Campbell,  10  Grat.  561;  Powell  v.  Knox,  16  Ala.  364;  Maul- 
din V.  Armstead,  14  Ala.  702. 

«  Robins  v.  Deshon,  19  Ind.  204;  King  v.  Lawrence,  14  Wis.  238;  Farrell 
«.  Ladd,  10  Allen,  127;  Childs  «;.  Jordan,  106  Mass.  323. 

7  Ante,  §  264;  Kuster  v.  Howe,  3  Ind.  268. 

568 


CHAP.  XI.]      ASSIGNMENT  IN  BANKRUPTCY  BY  TRUSTEE.       [§  345. 

discretionary  trusts  confided  personally  to  the  original  trustee, 
unless  the  power  and  confidence  are  also  confided  in  them  by 
the  instrument.^  In  the  United  States,  (a)  the  heirs  or  execu- 
tors will  take  the  trust  property,  and  they  must  settle  the  ac- 
counts of  the  testator  in  relation  to  the  trust.  They  must  also 
see  that  the  property  is  protected  and  preserved,  but  they  are 
not  under  any  obligation  to  execute  the  trust.  They  may 
decline  the  office,  and  generally  the  court  will  appoint  new 
trustees  to  succeed  to  the  original  trustees.  If  the  heirs  or  exec- 
utors continue  to  act  as  trustees,  they  will  be  liable  for  no  past 
breaches  of  trust,  but  only  for  breaches  that  occur  under  their 
own  management.^ 

§  345.  It  has  been  before  stated  that  a  general  assignment  for 
creditors  does  not  pass  a  trust  estate.  In  such  case  it  requires 
special  words  to  vest  the  estate  in  an  assignee.  So  an  assign- 
ment in  bankruptcy  of  all  the  trustee's  property  does  not  pass 
estates  which  the  bankrupt  holds  in  trust.^  If  the  bankrupt  by 
a  breach  of  trust  has  converted  the  trust  estate  into  other 
property,  the  cestui  que  trust  may  follow  it  into  the  hands  of  the 
assignee,  so  far  as  he  can  identify  the  particular  property  ob- 
tained by  breach  of  the  trust.''  But  if  the  trust  property  has 
become  so  amalgamated  with  the  general  mass  of  the  bankrupt's 
estate  that  it  cannot  be  traced  or  identified,  the  cestui  que  trust 
must  prove  his  claim.  ^    If  an  assignee  should  get  possession  of 

»  Ante,  §  264;  Mansell  v.  Manscll,  Wilm.  36;  Cook  v.  Crawford,  13  Sim. 
91;  Hall  v.  Dewes,  Jac.  189;  Peyton  v.  Burj-,  2  P.  Wms.  626;  Bradford  v. 
Belfield,  2  Sim.  264;  Cole  v.  Wade,  16  Ves.  45;  Sharp  t-.  Sharp,  2  B.  &  A. 
405.    See  TowTisend  v.  Wilson,  1  B.  &  A.  608. 

2  Baird's  App.,  3  W.  &  S.  459;  Schenck  v.  Schenck,  16  N.  J.  Eq.  174; 
Hill  V.  State,  2  Ark.  604. 

»  Ante,  §  336;  Scott  v.  Surman,  Willes,  402.  [  Lowell  on  Bankruptcy, 
§  368;  1  Ames'  Cases  on  Trusts  (2d  ed.).  p.  392.] 

*  Taylor  v.  Plumer,  3  M.  &  S.  562;  Ex  parte  Sayers,  5  Ves.  169.  [  See 
injra,  §  828  and  note.] 

*  Ex  parte  Dumas,  1  Atk.  232;  Ryall  v.  Rolle,  id.  172;  Scott  v.  Surman, 
WiUes,  403. 

(a)   See  supra,  §  269,  note. 

569 


§  347.]  PROPERTIES    OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

the  trust  estate,  and  refuse  to  restore  it,  the  trustee,  though  a 
bankrupt,  may  maintain  a  suit  for  its  restoration,  or  the  cestui 
que  tru^t  may  have  a  bill  for  the  appointment  of  new  trustees, 
and  the  conveyance  of  the  property  to  them.^ 

§  346.  It  is  now  a  universal  rule  that  all  those  who  take 
under  the  trustee,  except  purchasers  for  a  valuable  considera- 
tion without  notice,  take  subject  to  the  trust,  and  they  must 
either  execute  the  trust  themselves,  or  convey  the  property  to 
new  trustees  appointed  by  the  court.  Thus  the  heir,  executor, 
administrator,  devisee,  and  the  assignee  by  deed  or  in  bank- 
ruptcy, are  bound  by  the  trust;  so  are  those  who  take  dower  or 
curtesy  in  the  trust  estate,  or  a  creditor  who  levies  an  execution 
upon  it.  If  the  trust  estate  is  forfeited  to  the  crown  or  the 
State,  it  is  still  subject  to  the  trust;  so  if  it  escheats  upon  the 
failure  of  heirs.  But  a  disseizor  is  not  an  assignee  of  the  trustee, 
he  holds  a  wrongful  title  of  his  own,  adversely  to  the  trust.  The 
cestui  que  trust  has  no  remedy  in  such  case,  except  to  procure 
the  trustee  to  bring  an  action  upon  his  legal  title  to  recover 
the  possession.  The  cestui  que  trust  could  not  maintain  a  suit  in 
equity  to  compel  the  disseizor  to  hold  upon  the  same  trusts  as 
the  trustee;  for  there  is  no  privity  between  the  disseizor  and 
disseizee.^  The  only  remedy  of  the  cestui  que  trust  is  against  the 
trustee;  and  if  he  refuses  to  bring  an  action  to  recover  the 
estate,  he  may  be  removed  and  a  new  trustee  appointed,  (a) 

§  347.  Where  the  legal  and  equitable  estate  in  the  same  land 
becomes  vested  in  the  same  person,  the  equitable  will  merge  in 
the  legal  estate;  for  a  man  cannot  be  a  trustee  for  himself,  nor 

»  Winch  V.  Keely,  1  T.  R.  619;  Carpenter  v.  Mamell,  3  B.  «&  P.  40. 

^  Finch's  Case,  4  Inst.  85;  Gilbert  on  Uses  by  Sugd.  249;  Reynolds  v. 
Jones,  2  Sim.  &  S.  206;  Turner  v.  Buck,  22  Vin.  Ab.  21;  Doe  v.  Price,  16 
M.  &  W.  603.  But  the  cestui  que  trust  is  the  beneficial  owner,  and  the 
court  will  protect  him  in  an  entry  and  occupation  against  a  stranger. 
Oatman  v.  Barney,  46  Vt.  594.    [  See  Ames  on  Trusts  (2d  ed.),  373.] 

(a)  See  supra,  §  328  and  notes. 

570 


CHAP.   XI. J 


MERGER. 


l§  347. 


hold  the  fee,  which  embraces  the  wliole  estate,  and  at  the  same 
time  hold  the  several  parts  separated  from  the  whole.^  (a)  But 
in  order  that  this  may  be  true,  the  two  estates  must  be  com- 
mensurate with  each  other;  or  the  legal  estate  must  be  more 
extensive  or  comprehensive  than  the  equitable.  The  equi- 
table fee  cannot  merge  in  a  partial  or  particular  legal  estate.'^ 

•  Wade  V.  Paget,  1  Bro.  Ch.  363;  Selby  v.  Alston,  3  Vee.  339;  Philips  v. 
Brydges,  id.  126;  Goodright  v.  Wells,  Doug.  771;  Finch's  Case,  4  Inst.  85; 
Ilarmood  v.  Oglander,  8  Ves.  127;  Crcagh  v.  Blood,  3  Jones  &  L.  133;  James 
V.  Morey,  2  Cow.  246;  Mason  v.  Mason,  2  Sandf.  Ch.  433;  James  v.  Johnson, 
6  Jolms.  Ch.  417;  Cooper  v.  Cooper,  1  Halst.  Ch.  9;  Healy  t;.  Alston,  25 
Miss.  190;  Brown  v.  Bontee,  10  Sm.  &  M.  268;  Lewis  v.  Starke,  id.  128; 
Nicholson  v.  Halsey,  1  Johns.  Ch.  422;  Butler  v.  Godley,  1  Dev.  94; 
Hopkinson  v.  Dumas,  42  N.  H.  306;  Gardner  v.  Astor,  3  Johns.  Ch.  53; 
Downes  v.  Grazebrook,  3  Mer.  208;  AylifF  v.  Murray,  2  Atk.  59;  Wills  v. 
Cooper,  1  Dutch.  (N.  J.)  137;  Habergham  v.  Vincent,  2  Ves.  Jr.  204.  [  In  re 
Hitchins,  80  N.  Y.  S.  1125;  Greene  v.  Greene,  125  N.  Y.  506;  Tuck  v.  Knapp, 
85  N.  Y.  S.  1001;  Tilton  v.  Davidson,  98  Me.  55;  Robb  v.  Washington  & 
Jefferson  College,  93  N.  Y.  S.  92,  103  App.  Div.  327;  Weeks  v.  Frankel, 
197  N.  Y.  304;  Clarke  v.  Sisters,  82  Neb.  85.] 

2  Selby  V.  Alston,  3  Ves.  339;  Hunt  v.  Himt,  14  Pick.  374;  Donalds  v. 


(a)  The  fact  that  one  of  the  ben- 
eficiaries becomes  one  of  the  trustees 
or  sole  trustee  does  not  bring  about 
merger  of  his  equitable  interest  in 
his  legal  estate.  Miller  v.  Rosen- 
berger,  144  Mo.  292;  Burbach  v. 
Burbach,  217  111.  547.  And  where 
the  sole  life  beneficiary  becomes 
trustee,  the  trust  for  the  life  ben- 
eficiary does  not  cease;  there  is  no 
merger  of  the  equitable  life  estate. 
Losey  v.  Stanley,  147  N.  Y.  560; 
Irving  V.  Irving,  47  N.  Y.  S.  1052; 
Spengler  v.  Kuhn,  212  111.  186;  Dos- 
cher  V.  Wyckoff,  113  N.  Y.  S.  655. 
But  see  Weeks  v.  Frankel,  197  N.  Y. 
304. 

Where  real  estate  was  devised  to 
four  as  trustees  to  collect  the  income 
and  di\ide  it  among  themselves 
equally,  the  trust  to  continue  imtil 
such  time  as  all  four  should  agree  to 
sell  or  to  divide  the  land,  the  pro- 


ceeds or  the  land  to  be  then  di\'ided 
among  them,  it  has  been  held  that 
there  was  no  merger  of  the  equi- 
table interests  in  the  legal  estate  and 
the  court  declined  to  decree  a  ter- 
mination of  the  trust  on  application 
of  less  than  all  of  the  four.  Harris  v. 
Harris,  205  Pa.  St.  460.  But  m  a 
similar  case  in  New  York  it  has  been 
held  that  no  trust  ever  came  into 
e.xistence.  Greene  v.  Greene,  125 
N.  Y.  506.  See  Tilton  v.  DaN-idson, 
98  Me.  55;  Bronson  v.  Thompson, 
77  Conn.  214. 

It  has  been  held  that  where  the 
sole  beneficiary  of  a  passive  trust  of 
chattels  is  put  into  possession,  he 
becomes  the  full  legal  owTier.  Kron- 
son  I'.  Lipschitz,  68  N.  J.  Eq.  367. 
As  to  termination  of  the  trust  by 
decree  of  court  in  certain  cases,  see 
infra,  §  920. 

571 


§  347.]  PROPERTIES    OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

And  there  will  be  no  merger,  if  it  is  contrary  to  the  intention 
of  the  parties.^  If  A.  should  convey  lands  to  B.  in  trust  for  C. 
and  her  heirs,  and  C.  should  be  the  heir  of  B.,  upon  the 
death  of  B.  the  legal  title  would  descend  to  C,  and  thus  both 
the  legal  and  equitable  title  would  meet  in  C;  but  if  C.  was  a 
married  woman,  and  it  was  plainly  the  intention  of  the  grantor 
or  settlor,  to  be  gathered  from  the  whole  instrument,  that  the 
trust  should  not  cease,  but  continue  an  active  trust,  the  court 
would  not  allow  the  equitable  estate  to  merge  in  the  legal,  but 
a  new  trustee  would  be  appointed  to  take  the  legal  title.^  Of 
course,  in  law  the  estates  will  merge  wherever  the  interests 
meet;  but  courts  of  equity  will  preserve  the  estates  separate, 
where  the  rights  or  interests  of  the  parties  require  it.  If  the 
trustee  acquires  the  equitable  interest  by  any  breach  of  his 
duty,  or  by  fraud,  courts  will  not  allow  it  to  merge.^  So  if 
there  are  intervening  heirs  who  would  be  squeezed  out,  the 
estates  will  not  merge.^  So  if  the  legal  estate  comes  to  the 
cestui  que  tru^t  by  a  conveyance  which  turns  out  to  be  void, 
there  will  be  no  merger.^  (a)    \\Tiether  charges  upon  an  estate, 

Plumb,  8  Conn.  453;  James  v.  Morey,  2  Cow.  284;  Goodright  v.  Wells, 
Doug.  771;  Philips  v.  Brydges,  3  Ves.  125;  Robinson  v.  Cuming,  t.  Talbot, 
164;  1  Atk.  475;  Boteler  v.  Allington,  1  Bro.  Ch.  72;  Buchanan  v.  Harrison, 

1  Jon.  &  Hen.  662;  Merest  v.  James,  6  Madd.  118;  Habergham  v.  Vincent, 

2  Ves.  Jr.  204. 

1  Gardner  v.  Astor,  3  Johns.  Ch.  53;  James  v.  Morey,  2  Cow.  246;  Mechan- 
ics' Bank  v.  Edwards,  1  Barb.  S.  C.  272;  Starr  v.  Ellis,  6  Johns.  Ch.  393; 
Donalds  v.  Plumb,  8  Conn.  453;  Den  v.  Vanness,  5  Halst.  102;  Hunt  v.  Hunt, 
14  Pick.  374;  Nurse  v.  Yerwarth,  3  Swanst.  608;  Saunders  v.  Bournford, 
Finch,  424;  Thom  v.  Newman,  3  Swanst.  603;  Mole  v.  Smith,  Jac.  490. 
[  Ingle  V.  Vaughan  Jenkins,  [1900]  2  Ch.  368.  See  Asche  v.  Asche,  113  N.  Y. 
232.] 

*  Gardner  v.  Astor,  3  Johns.  Ch.  53;  James  v.  Morey,  2  Cow.  246; 
Mechanics'  Bank  v.  Edwards,  1  Barb.  S.  C.  272;  Starr  v.  Ellis,  6  Johns. 
Ch.  393;  Donalds  v.  Plumb,  8  Conn.  453;  Den  v.  Vanness,  5  Halst.  102;  Hunt 
V.  Hunt,  14  Pick.  374;  Nurse  y.  Yerwarth,  3  Swanst.  608;  Saunders  v.  Bourn- 
ford,  Finch,  424;  Thom  v.  Newman,  3  Swanst.  603;  Mole  v.  Smith,  Jac.  490 

»  Spence,  Eq.  Jur.  572.  *  Lewis  v.  Stark,  10  Sm.  &  M.  128 

^  ElUott  V  Armstrong,  2  Blackf.  208;  Buchanan  v.  Harrison,  1  John. 
&  H.  662;  Brandon  v.  Brandon,  31  L.  J  Ch.  47. 

(a)   Or  if  he  gets  the  legal  title  by  mistake.    In  re  Spencer,  128  Fed.  654. 
572 


CHAP.  XI.]  MERGER.  [§  348. 

as  mortgages,  will  merge  in  the  legal  title,  upon  being  paid  off, 
depends  upon  the  intention  of  the  parties,  and  frequently  upon 
the  interests  and  equities  between  them.'  If  a  leasehold  is 
held  by  a  wife  in  her  right,  but  is  in  the  occupation  of  her  hus- 
band, and  he  purchases  the  reversion,  there  will  be  no  merger.^ 

§  348.  Thus  if  a  tenant  for  life  pays  off  a  charge  or  incum- 
brance upon  an  estate,  it  will  be  considered  that,  as  his  interest 
ceases  with  his  life,  he  could  never  have  intended  that  the 
charge  should  be  extinguished,  and  not  survive  for  the  benefit 
of  his  representatives.^  (a)  And  the  same  rule  applies,  though 
the  tenant  for  life  may  be  ultimately  entitled  to  the  reversion 
in  fee,  subject  to  remainders  which  fail.'*  Even  in  this  case, 
evidence  may  be  given  that  the  tenant  for  life  intended  the 
charge  to  be  merged  and  extinguished.^     A  tenant  in  tail  in 

»  Hunt  V.  Hunt,  14  Pick.  374;  Johnson  v.  Webster,  4  De  G.,  M.  &  G. 
474;  Tyrwhitt  v.  Tyrwhitt,  32  Beav.  244;  Morley  v.  Morley,  25  L.  J.  Ch. 
1;  Compton  V.  Oxenden,  2  Ves.  Jr.  264;  Forbes  v.  MofTatt,  18  Ves.  390; 
Horton  t;.  Smith,  4  K.  &  J.  630;  Tomhnson  v.  Steers,  3  Mer.  210;  Smith 
V.  Phillips,  1  Keen,  694;  Medley  v.  Horton,  14  Sim.  226;  Brown  v.  Stead, 
5  Sim.  535;  Parry  v.  Wright,  1  S.  &  S.  369;  5  Russ.  542;  Mocatta  v.  Mur- 
gatroyd,  1  P.  W.  193;  Greswold  v.  Marsham,  2  Ch.  Gas.  170;  Garnett  v. 
Armstrong,  2  Conn.  &  Laws.  458;  Watts  v.  Symes,  16  Sim.  646;  Cooper 
V.  Cartwright,  1  John.  679.  [  Gresham  v.  Ware,  79  Ala.  192;  Boardman  v. 
Larrabee,  51  Conn.  39;  Coryell  i^.  Klehm,  157  111.  462;  Chase  v.  Van  Meter, 
140  Ind.  321 ;  Patterson  v.  Mills,  69  Iowa,  755;  Keith  v.  Wheeler,  159  Mass. 
161;  Gibbs  v.  Johnson,  104  Mich.  120;  Collins  v.  Stocking,  98  Mo.  290; 
Hayden  v.  Lauffenburger,  157  Mo.  88;  Bai^sett  t;.  O'Brien,  149  Mo.  381; 
Fellows  V.  Dow,  58  N.  H.  21;  Smith  v.  Roberts,  91  N.  Y.  470;  Duffy  v.  Mc- 
Guiness,  13  R.  I.  595;  Thome  v.  Cann,  [1895]  A.  C.  11;  Adams  v.  Angell, 
5  Ch.  Div.  634;  Liquidation  Estates  P.  Co.  v.  Willoughby,  [1898]  A.  C. 
321.] 

2  Clark  V.  Tennison,  33  Md.  85. 

'  Pitt  V.  Pitt,  22  Beav.  294;  Burrell  v.  Egremont,  7  Beav.  205;  Reding- 
ton  V.  Redington,  1  B.  &  B.  139;  Faulkner  v.  Daniel,  3  Hare,  217;  State  v. 
Kock,  47  Mo.  582. 

*  Wyndham  v.  Egremont,  Amb.  753;  Trevor  t;.  Trevor,  2  Myl.  &  K.  675. 

*  Afltley  V.  Milles,  1  Sim.  298. 

(a)  This  presumption  is  not  re-      parent  and   child.     In  re  Harvey, 
butted  by  the  fact  that  the  tenant      [1896]  1  Ch.  137. 
for  life  and  the  remainder-man  are 

573 


§  349.]  PROPERTIES    OF   THE   TRUST   ESTATE.  [CHAP.  XI. 

possession  has  the  power  to  convert  the  estate  into  an  absolute 
fee;  therefore,  if  he  pays  off  an  incumbrance,  the  presumption 
is  that  he  intended  it  to  merge.^  But  if  the  estate  of  the  tenant 
in  fee-simple  or  in  tail  is  subject  to  any  executory  limitations 
that  may  defeat  their  estate,  or  if  they  pay  off  the  charges  under 
any  mistake  as  to  their  title,  the  court  would  not  allow  the 
charges  to  merge  or  become  extinguished.^  But  if  a  person 
pays  or  takes  up  the  charges  or  incumbrances,  and  afterwards 
the  legal  title  should  come  to  him,  the  charges  would  merge.' 
So  if  a  person,  having  the  legal  title  and  holding  charges  and 
incumbrances  upon  the  estate,  conveys  in  fee  or  in  mortgage, 
and  makes  no  mention  of  the  charges  or  incumbrances,  they 
would  merge  as  between  the  grantor  and  grantee.^  Generally, 
where  the  owner  in  fee-simple  pays  off  a  charge  or  incumbrance 
on  an  estate,  the  presumption  of  law  is  that  such  charge  or 
incumbrance  will  merge;  ^  but  if  he  owns  only  a  partial  interest, 
the  presumption  is  that  the  charge  was  to  be  kept  on  foot.®  Mere 
possession  of  the  property  by  the  trustee  or  by  the  cestui  qui 
trust  is  no  evidence  of  a  merger.' 

§  349.  Sometimes  where  an  estate  has  been  vested  by  deed  or 
will  in  trustees  for  a  cestui  que  trv^t,  whether  it  is  a  fee  or  some 
lesser  estate,  the  law  will  presume  that  the  trustees  have  sur- 
rendered, conveyed,  or  assigned  the  estate,  whatever  it  was,  to 

1  St.  Paul  V.  Dudley,  15  Ves.  173;  Buckinghamshire  v.  Hobart,  3  Swanst. 
199;  Jones  v.  Morgan,  1  Bro.  Ch.  206. 

-  Drinkwater  v.  Combe,  2  S.  &  S.  340;  Shrewsbury  v.  Shrewsbury,  3 
Bro.  Ch.  120;  1  Ves.  Jr  227;  Wigsell  v.  Wigsell,  2  S.  &  S.  364;  Horton  v. 
Smith,  4  K.  &  J.  624;  Buckinghamshire  v.  Hobart,  3  Swanst.  199;  Kirkham 
V.  Smith,  1  Ves.  528. 

'  Horton  v.  Smith,  4  K.  &  J.  624;  Trevor  v.  Trevor,  2  Myl.  &  K.  675; 
Wigsell  V.  WigseU,  2  S.  &  S.  364. 

*  Tyler  v.  Lake,  4  Sim.  351;  Johnson  v.  Webster,  4  De  G.,  M.  &  G.  474. 

6  Hood  V.  Phillips,  3  Beav.  513;  Pitt  v.  Pitt,  22  Beav.  294;  Gunter  v. 
Gunter,  23  Beav.  571;  Swinfen  v.  Swinfen,  29  Beav.  199;  Tyrwhitt  v.  Tyr- 
whitt,  32  Beav.  244. 

"  Price  V.  Gibson,  2  Eden,  115;  Swinfen  v.  Swinfen,  29  Beav.  199;  Comp- 
ton  V.  Oxenden,  2  Ves.  Jr.  263;  Donisthorpe  v.  Porter,  2  Eden,  162. 

^  Broswell  v.  Dovais,  11  Fla.  62. 

574 


CHAP.  XI. J  SURRENDER.  [§  349. 

the  cestui  que  trust}  This  presumption  of  law  is  necessary  for 
the  quieting  of  titles.  If  such  presumptions  could  not  be  made, 
some  titles  would  remain  forever  imperfect.  There  might  be 
an  outstanding  legal  estate,  which  would  at  any  time  defeat  the 
tenant,  if  there  could  not  be  a  presumption  of  a  conveyance  or 
surrender  by  the  trustee  to  the  cestui  que  trust.  This  presump- 
tion is  somewhat  different  from  that  prescription  by  which  one 
tenant  by  an  open,  peaceable,  and  adverse  occupation,  under  a 
claim  of  right,  obtains  the  legal  title  as  against  another  person. 
In  such  case,  after  a  definite  period  of  time,  a  grant  or  convey- 
ance is  presumed  in  favor  of  the  tenant  in  occupation,  though 
it  may  be  well  enough  understood  that  no  such  grant  or  convey- 
ance was  ever  made.  So  there  may  be  a  presumption  that  a 
trustee  has  conveyed  to  the  cestui  que  trust,  though  such  pre- 
sumption may  not  always  be  founded  on  a  belief  that  such 
conveyance  was  actually  made.^  There  is  another  difficulty 
between  trustees  and  cestuis  qu£  trust  which  does  not  exist 
between  adverse  claimants  of  the  same  legal  title.  The  titles, 
of  the  trustee  and  cestui  que  trust  are  not  adverse  to  each  other, 
and  generally  the  possession  of  the  cestui  que  trust  is  the  pos- 
session of  the  trustee;  at  any  rate  it  is  generally  consistent  with 
the  legal  title  of  the  trustee.  Therefore,  mere  length  of  time 
as  between  trustee  and  cestui  que  trust  will  afford  no  ground  for 
a  presumption  of  a  conveyance  or  surrender  from  the  trustee  to 
the  cestui  que  trust,^  as  cestuis  que  trust  may  occupy  the  estate 
indefinitely  under  a  merely  equitable  title. 

»  England  v.  Slade,  4  T.  R.  682;  Wilson  t-.  Allen,  1  J.  &  W.  611;  Noel 
V.  Bewley,  3  Sim.  103;  Cooke  v.  Salton,  2  S.  &  S.  154;  Hillary  v.  Waller, 

12  Ves.  239;  Lade  v.  Holford,  Bull.  N.  P.  110;  Doe  v.  Hilder,  2  B.  &  A. 
782;  Emery  v.  Grocock,  6  Madd.  54;  Townehend  v.  Champemown,  1  Y. 
&  J.  583;  Goodtitle  v.  Jones,  7  T.  R.  47;  Doe  v.  Syboum,  id.  2;  Moore  v. 
Jackson,  4  Wend.  59;  Dutch  Church  i'.  Mott,  7  Paige,  77;  Jackson  t;.  Moore, 

13  Johns.  513;  1  Green.  Cruise  Dig.  412;  Matthews  v.  Ward,  10  GUI  &  J. 
443;  Jackson  v.  Pierce,  2  Johns.  226;  Sinclair  i-.  Jackson,  8  Cow.  543. 

»  Hillary  v.  Waller,  12  Ves.  252. 

»  Keene  v.  Deardon,  8  East,  263;  Goodson  v.  Ellison,  3  Russ.  588;  Hil- 
lary V.  Waller,  12  Ves.  251;  1  Sugd.  V.  &  P.  350,  470;  Floumoy  u. 
Johnson,  7  B.  Mon.  694;  Doe  v.  Langdon,  12  Q.  B.  719. 

575 


§  351.]  PROPERTIES    OF   THE   TRUST    ESTATE.         [CHAP.  XI. 

§  350.  This  presumption  has  been  discussed  at  length  in  sev- 
eral cases,  and  some  difference  of  opinion  has  been  expressed;  ^ 
but  it  seems  now  to  be  well  settled  that  three  circumstances 
must  concur  in  order  to  raise  the  presumption  of  a  conveyance 
or  surrender  by  the  trustee  to  the  cestui  que  trust :  (1)  It  must 
have  been  the  duty  of  the  trustee  to  make  the  conveyance; 
(2)  There  must  be  some  sufficient  reason  to  support  the  pre- 
sumption; (3)  The  presumption  must  be  in  support  of  a  just 
title,  and  not  to  defeat  it. 

§  351.  Thus  where  the  cestui  que  trust  becomes  absolutely 
entitled  to  the  whole  beneficial  interest  in  the  trust  estate,  and 
the  active  duties  of  the  trustee  have  ceased,  the  statute  of  uses 
generally  executes  the  legal  title  of  the  trustee  to  the  cestui  que 
trust,  and  he  obtains  the  legal  as  well  as  the  beneficial  estate,  (a) 
But  there  are  cases  where  the  active  duties  of  the  trustee  having 
ceased,  the  legal  title  does  not  pass  without  a  conveyance.  In 
such  cases  it  is  clearly  the  duty  of  the  trustee  to  convey  the 
legal  title  to  the  cestui  que  trust,  or  to  such  person  as  he  shall 
appoint.^  Therefore,  if  the  beneficial  owner  has  been  a  long 
time  in  possession,  dealing  with  the  estate  in  every  respect  as 
his  own,  it  will  be  presumed  that  the  trustee  performed  his  duty 
and  conveyed  the  legal  estate  to  the  proper  person.  As  where 
a  mortgage  in  fee  was  made  to  a  trustee  for  the  real  mortgagee, 
and  the  cestui  qv£  trust  or  real  mortgagee  took  a  conveyance  of 

'  Lade  v.  Holford,  Bull.  N.  P.  110;  Doe  v.  Syboum,  7  T.  R.  2;  Good- 
title  V.  Jones,  id.  49;  Doe  v.  Read,  8  T.  R.  118;  see  note,  1  Green.  Cruise, 
410;  2  Pow.  on  Mort.  491.  [  See  also  M'Queen  v.  Meade,  28  L.  T.  n.  s. 
768.] 

2  Langley  v.  Sneyd,  1  S.  &  S.  45;  Carteret  v.  Carteret,  2  P.  Wms.  134; 
Angier  v.  Stannard,  3  Myl.  &  K.  571;  England  v.  Slade,  4  T.  R.  682;  Good- 
son  I'.  Ellison,  3  Russ.  583. 

(a)    The    N.    Y.    Consol.    Laws,  tee  has  himself  an  interest  in  the 

Vol.  IV,  p.  3389,   §§  91-93,  taking  grant,    either   as   an   individual    or 

away  the  trustee's  title,  when  merely  with  others.  Kjngi>.  Townshend,  141 

nominal,  and  vesting  it  in  the  ben-  N.  Y.  358.      See  supra,  §  142. 
eficiary,  do  not  apply  when  the  tnis- 

576 


CHAP.  XI.]  SURRENDER.  [§  351. 

the  equity  of  redemption,  and  ever  after  dealt  with  the  estate 
as  if  the  legal  fee  was  in  him,  a  conveyance  of  the  mortgage  was 
presumed  to  have  been  made  to  him  by  the  trustee.^  There 
was  a  use  of  the  estate  in  this  case  for  one  hundred  years.  Where 
lands  were  conveyed  to  trustees  for  a  religious  society,  which 
was  afterwards  incorporated,  it  was  held,  after  the  use  of  the 
land  for  one  hundred  and  forty  years  by  the  incorporated  soci- 
ety, that  a  conveyance  by  the  trustees  might  be  presumed.^  So 
where  several  persons  conveyed  to  a  trustee  a  tract  of  land  for 
the  purposes  of  a  partition  by  the  trustee  conveying  back  to 
each  person  his  share  in  severalty,  as  set  forth  in  the  deed,  it 
w^as  held,  after  an  occupation  of  many  years  by  each  person  in 
severalty  according  to  the  intended  partition,  that  the  trustee 
might  be  presumed  to  have  conveyed.^  WTiere  the  trustees  are 
to  convey  upon  a  certain  event,  or  at  a  certain  time,  as  when  a 
minor  becomes  twenty-one,  the  presumption  will  arise  after  a 
much  shorter  lapse  of  time.^  Thus,  where  trustees  were  to  con- 
vey to  the  testator's  son  immediately  on  his  coming  of  age,  the 
son  became  of  age  in  1788,  and  granted  a  long  lease  in  1789,  the 
court  presumed  a  conveyance  in  1792,  or  only  four  years  after 
the  event,  there  being  no  proof  of  an  actual  conveyance.  Lord 
Kenyon  said  "there  was  no  reason  why  the  jury  should  not 
presume  a  conveyance  from  the  trustees.  They  were  bound  to 
make  one,  and  a  court  would  have  compelled  them  to  have  done 
it  if  they  had  refused.  It  is  rather  to  be  presumed  that  they 
did  their  duty.  And  as  to  time,  the  jury  may  he  directed  to 
presume  a  conveyance  and  surrender  in  much  less  time  than 
twenty  years."  ^  So  where  the  direction  to  the  trustee  to  con- 
vey applies  to  only  a  part  of  the  estate,  the  court  may  presume 
a  conveyance  of  the  whole,  if  the  circumstances  require  or  war- 
rant such  presumption.^ 

»  Noel  I'.  Bewley,  3  Sim.  103.       »  Dutch  Church  v.  Mott,  7  Paige,  77. 
'  Jackson  v.  Moore,  13  Johns.  513. 

*  Wilson  V.  Allen,  1  J.  &  W.  611;  Hillary  v.  Waller,  12  Ves.  239;  Doe 
V.  Sybourn,  7  T.  R.  2. 

'  England  v.  Slade,  4  T.  R.  682;  Marr  v.  Gilman,  1  Cold.  488. 
'  Hillary  t;.  Waller,  12  Ves.  239. 

VOL.  I.  —  37  577 


§  354.]  PROPERTIES    OF   THE   TRUST    ESTATE.  [CHAP.  XI. 

§  352.  If  the  estate  was  originally  conveyed  to  trustees  for 
some  particular  purpose,  as  by  way  of  security  or  indemnity,  or 
to  raise  an  annuity  or  portion,  or  for  any  other  purpose,  as  soon 
as  the  purpose  is  accomplished,  the  trustees  become  mere  dry 
trustees,  and  it  is  their  duty  to  convey  the  estate  to  the  bene- 
ficial owner.^  Where,  from  lapse  of  time  joined  with  other  cir- 
cumstances, there  is  a  moral  certainty  that  the  purposes  of  the 
trust  have  all  been  accomplished,  the  court  will  act  upon  the 
certainty,  and  presume  a  reconveyance  although  there  is  no 
direct  proof  of  the  fact.^ 

§  353.  AVhere  an  estate  is  vested  in  trustees  upon  an  express 
trust,  they  must  retain  the  legal  title  until  the  trusts  are  fully 
executed.  Therefore,  no  conveyance  will  be  presumed,  so  long 
as  the  trustees  have  any  duties  to  perform ;  for  that  would  be  to 
presume  a  breach  of  trust,  which  will  never  be  presumed:  the 
fact  must  be  proved  by  competent  evidence.^  In  Aiken  v.  Smith, 
the  court  presumed  that  the  conveyance  was  made  at  the  death 
of  the  tenant  for  life,  that  being  the  time  fixed  for  the  convey- 
ance, and  the  time  when  the  active  duties  of  the  trustees  ceased.^ 

§  354.  But  there  must  always  be  sufficient  reason  for  pre- 
suming a  reconveyance  or  surrender  by  the  trustee;  that  is,  there 
must  be  some  evidence  of  such  a  conveyance,  or  some  evidence 
upon  which  the  presumption  of  the  conveyance  may  be  founded. 
The  mere  fact  that  the  trustee  was  to  convey  upon  the  execution 
of  the  trust,  or  upon  the  happening  of  a  certain  event,  is  not 
enough.    There  must  be  some  circumstance  from  which  it  may 

1  Hillary  v.  Waller,  12  Ves.  239;  Doe  v.  Syboum,  7  T.  R.  2;  Cooke  v. 
Soltau,  2  S.  &  S.  154;  Ex  parte  Holman,  1  Sugd.  V.  &  P.  509;  Emery  v.  Gro- 
cock,  6  Madd.  54;  Doe  v.  Wright,  2  B.  &  A.  710;  Bartlett  v.  Downes,  3  B. 
&  Cr.  616. 

*  Emery  v.  Grocock,  6  Madd.  54;  HiUary  v.  Waller,  12  Ves.  252. 

3  Beach  t;.  Beach,  14  Vt.  28;  Doe  f.  Staple,  2  T.  R.  684;  Keene  v.  Deardon, 
8  East,  248;  Floumoy  v.  Johnson,  7  B.  Mon.  694. 

*  Aiken  v.  Smith,  1  Sneed,  304.  This  case  is  opposed  to  Rees  i-.  Wil- 
liams, 2  M.  &  W.  749. 

578 


CHAP.  XI.]  SURRENDER.  [§  355. 

be  reasonably  concluded  that  he  did  in  fact  convey.  Mere 
length  of  time  is  not  enough.  Courts  have  refused  after  the 
lapse  of  one  hundred  and  twenty  years  to  presume  a  reconvey- 
ance, when  there  were  no  intermediate  transactions  to  give  force 
to  the  length  of  time;  ^  for  the  possession  during  ail  that  time 
may  not  be  inconsistent  with  the  trustee's  title.^  However, 
great  lapse  of  time  is  an  important  circumstance;  and  the  fact 
that  it  was  the  duty  of  the  trustees  to  convey  is  another  impor- 
tant circumstance.  Very  slight  circumstances  added  to  these 
will  be  sufficient  to  justify  a  court  or  jury  in  presuming  a  con- 
veyance; and  a  conveyance  may  be  presumed  where  the  estate 
has  been  dealt  with  by  the  beneficial  owner  in  a  manner  in 
which  reasonable  men  do  not  deal  with  their  estates,  unless  they 
are  the  legal  as  well  as  beneficial  owners.' 

§  355.  It  is  further  said  that  the  purpose  of  the  presumption 
must  be  to  prevent  a  just  title  from  being  defeated  by  mere 
matter  of  form."*  The  presumption  is  a  shield  for  defence  and 
not  a  sword  for  attack,  as  was  said  of  another  principle  of  law. 
As  the  presumption  was  introduced  for  the  security  of  estates 
and  the  protection  of  innocent  purchasers,  it  cannot  be  set  up 
to  eject  them  from  their  estates;  and  therefore  the  presumption 
will  be  made  only  in  favor  of  the  person  in  whom  the  beneficial 
title  is  clearly  vested  for  the  time  being,  whatever  may  be  the 
extent  of  his  equitable  interest.^  So  it  was  not  allowed  to  be 
set  up  in  favor  of  a  defendant  who  showed  no  title  but  a  mere 
naked  possession,  which  might  have  been  obtained  by  a  dis- 

'  Goodright  v.  Swymmer,  1  Kenyon,  385;  Goodson  t'.  Ellison,  3  Rusa. 
583;  Langley  v.  Sneyd,  1  S.  &  S.  45;  Doe  v.  Lloyd,  Mathews  on  Presump- 
tions, 215. 

2  Ibid.;  Keene  v.  Deardon,  8  East,  363;  Hillary  v.  Waller,  12  Vcs.  250. 

3  Garrard  v.  Tuck,  8  C.  B.  248;  Cottrell  v.  Hughes,  15  C.  B.  532;  Hil- 
lary V.  Waller,  12  Ves.  239;  Wilson  v.  Allen,  IJ.  &  W.  611. 

*  Lade  v.  Holford,  Bull.  N.  P.  110;  Doe  v.  Syboum,  7  T.  R.  2;  Good- 
title  V.  Jones,  7  T.  R.  47. 

"  Doe  V.  Cook,  6  Bing.  179;  Tenney  v.  Jones,  10  Bing.  75;  Bartlett  v. 
Downes,  8  B.  &  Or.  616;  Noel  v.  Bewley,  3  Sim.  103;  Wilson  v.  Allen,  1 
J.  &  W.  611. 

579 


§  350.]  PROPERTIES  OF   THE    TRUST    ESTATE,  [CHAP.  XI. 

seizin  of  the  beneficial  owner.^  And  where  two  litigants  both 
claimed  to  be  the  beneficial  owners,  a  surrender  of  an  outstand- 
ing legal  estate  or  term  was  not  presumed,  lest  either  obtaining 
it  should  defeat  the  other  without  regard  to  the  merits  of  his 
beneficial  title.^ 

§  356.  In  England,  there  was  a  system  of  conveyancing  by 
which  outstanding  terms  were  made  to  attend  the  legal  title 
and  protect  it.  Much  litigation  and  discussion  has  been  had 
over  these  terms,  their  merging  in  the  legal  title,  and  their  pre- 
sumed surrender.  They  have  very  little  importance  in  this 
country,  and  the  statement  of  the  law  concerning  them  is  not 
deemed  necessary.^ 

'  Doe  V.  Cook,  6  Bing.  179;  England  v.  Slade,  4  T.  R.  682;  Doe  v.  Sy- 
boum,  7  T.  R.  2. 

2  Doe  V.  Wrighte,  2  B.  &  A.  710. 
»  See  Hill  on  Trustees,  pp.  253-263. 


58D 


CUAP,  XII.]  LEGAL   AND    EQUITABLE    ESTATES.  [§  357. 


CHAPTER  XII. 

EXECUTORY     TRUSTS. 

§§  357-359.    Nature  of  an  executory  trust.    The  rule  in  Shelley's  Case. 

§  360.    Distinction  between  marriage  articles  and  wills. 

§  361.    Construction  of  marriage  articles  and  their  correction. 

§  362.  Where  strict  settlements  will  not  be  ordered. 

§§  363,  364.    Settlement  of  personal  property. 

§  365.  Construction  of  marriage  settlements. 

§  366.    Executory  trusts  under  wills. 

§  367.  Who  may  enforce  the  execution  of  executory  trusts. 

§  368.  Inducements  for  marriage. 

§§  369,  370.   Construction  of  executory  trusts  under  wills. 

§  371.  The  words  "heirs  of  the  body"  and  "issue." 

§  372.    WTien  courts  will  reform  executory  trusts. 

§  373.    How  courts  will  direct  a  settlement  of  personal  chattels. 

§  374.    Whether  courts  will  order  a  settlement  in  joint-tenancy. 

§  375.    What  powers  the  court  will  order  to  be  inserted  in  a  settlement. 

§  376.    Settlement  will  be  ordered  cy  prex  the  intention. 

§  357.  It  is  a  fundamental  proposition  that  equitable  estates 
are  governed  by  the  same  rules  as  legal  estates,  otherwise  inex- 
tricable confusion  would  ensue.^  If  there  was  one  rule  on  the 
equity  side,  and  another  on  the  law  side  of  courts,  there  would 
be  no  certainty  or  uniformity  of  interpretation  or  construction. 
Thus  at  common  law  a  grant  to  A.  for  life,  remainder  to  the 
heirs  of  his  body,  vested  an  estate  in  fee-tail  in  A.,  which  he 
could  bar,  and  cut  off  the  remainder.  The  same  rule  was  applied 
to  executed  trusts.  Thus  if  land  is  given  to  A.  and  his  heirs  in 
trust  for  B.  for  life,  remainder  to  the  heirs  of  his  body,  B.  takes 
an  equitable  fee-tail ;  ^  for  the  same  rules  apply  to  the  two  species 

1  Frye  v.  Porter,  1  Mod.  300;  Price  v.  Sisson,  2  Beas.  168;  Cowper  v. 
Cowpcr,  2  P.  W^ms.  753;  Burgess  v.  WTieat<>,  1  Wm.  Black.  123;  Cushing 
I'.  Blake,  30  N.  J.  Eq.  689. 

=  This  illustration  states  the  law  only  in  States  where  the  rule  in  Shel- 
ley's Ca.se,  as  it  is  called,  is  in  force.    In  States  where  the  rule  is  abrogated 

581 


§  357.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

of  estate.^  Therefore  where  technical  words  are  used  in  the 
creation  of  an  executed  trust  estate,  they  will  be  taken  in  their 
legal  technical  sense,^  though  Lord  Hard wi  eke  once  added  this 
qualification,  "  unless  the  intention  of  the  testator  or  author  of 
the  trust  plainly  appeared  to  the  contrary."  ^  But  this  quali- 
fication has  been  time  and  again  overruled,  and  it  is  now  an 
established  canon  that  a  limitation  in  trust,  perfected  and  de- 
clared by  the  settlor,  shall  have  the  same  construction  as  in  the 
case  of  an  executed  legal  estate.^  But  while  technical  words 
receive  their  technical  meaning  in  equitable  as  well  as  legal 
estates,  technical  words  are  not  always  necessary  to  create  and 
limit  equitable  estates  in  fee.  Thus  an  equitable  fee  may  be 
created  in  a  deed  without  the  word  "heirs,"  and  an  equitable 
entail  without  the  words  "heirs  of  the  body,"  if  the  words  used 
in  their  popular  sense  are  equivalent  to  the  technical  words,  or 
if  the  intention  is  sufficiently  expressed  and  clear.^  Thus  if  an 
estate  is  devised  to  A.  and  his  heirs  in  trust  for  D.  without  other 
limitations,  B.  will  take  an  equitable  fee;  for  it  is  plain  that  B.  is 
to  take  an  equitable  estate  as  large  as  the  legal  estate  that  passed 
to  A.  and  his  heirs,  which  is  a  legal  fee.^  But  if  an  estate  is  con- 
veyed by  deed  to  A.  and  his  heirs  in  trust  for  the  grantor  for  life, 


by  statute,  those  who  take  in  remainder  under  the  limitation,  take  as  pur- 
chasers; and  the  same  rule  apphes  to  equitable  estates. 
^  Noble  V.  Andrews,  37  Conn.  346. 

2  Wright  V.  Pearson,  1  Eden,  125;  Bale  v.  Coleman,  8  Vin.  268;  Jervoise 
V.  Northumberland,  1  J.  &  W.  .571;  McPherson  v.  Snowdon,  19  Md.  197. 

3  Garth  v.  Baldwin,  2  Ves.  655. 

*  Brydges  v.  Brydges,  3  Ves.  Jr.  125;  Austen  v.  Taylor,  1  Eden,  367 
Glenorchy  v.  Bosville,  Ca.  t.  Talb.  19;  Synge  v.  Hales,  2  B.  &  B.  507 
Wright  V.  Pearson,  1  Eden,  125.  But  see  Cushing  v.  Blake,  30  N.  J.  Eq.  389 
Carter  v.  Montgomery,  2  Tenn.  Ch.  216. 

^  Shep.  Touch,  by  Preston,  106.  [  Smith  v.  Proctor,  139  N.  C.  314; 
Holmes  v.  Holmes,  86  N.  C.  205;  McElroy  v.  McElroy,  113  Mass.  509;  In 
re  Irwing,  [1904]  2  Ch.  752;  In  re  Tringham's  Trusts,  [1904]  2  Ch.  487. 
See  supra,  §  312,  note.] 

«  Moore  v.  Cleghorn,  10  Beav.  423;  12  Jur.  591;  Knight  v.  Selby,  3  Man. 
&  Gr.  92;  Doe  v.  Cafe,  7  Exch.  675;  Watkins  v.  Weston,  32  Beav.  238; 
McClintock  v.  Irving,  10  Ir.  Ch.  481;  Brenan  v.  Boyne,  16  Ir.  Ch.  87;  Betty 
V.  Elliott,  id.  110,  n.;  Re  Bayley,  id.  215. 
582 


CHAP.  XII.]  THE    RULE    IN    SHELLEY 's    CASE. 


l§  358. 


remainder  for  his  children,  without  the  word  "heirs,"  the  chil- 
dren take  an  estate  for  life  only,  in  analogy  to  the  rules  of  law.' 

§  358.  The  rule  in  Shelley's  Case  was  never  a  rule  of  intention, 
or  of  construction  to  reach  and  carry  out  the  settlor's  intention; 
but  it  was  established  as  an  absolute  rule  of  property  to  obviate 
certain  difficulties  that  would  arise  in  relation  to  tenures,  if  cer- 
tain persons  to  whom  property  was  limited  were  allowed  to  take 
as  purchasers,  and  not  by  descent.^  (a)    It  is  notorious  that  the 

>  Overton  v.  Halliday,  14  Beav.  467;  1.5  id.  4S0;  16  Jur.  71;  Lucas  v. 
Brandreth,  28  Beav.  274;  Tatham  v.  Veraon,  29  id.  604;  Nelson  v.  Davis, 
35  Ind.  474. 

2  Doebler's  App.,  64  Penn.  St.  9. 


(a)  The  rule  in  Shelley's  Case  has 
been  abolished  by  statute,  wholly  or 
partly,  in  more  than  half  the  States, 
including  Massachusetts,  Maine, 
Connecticut,  Rhode  Island,  New 
Hampshire,  New  York,  Michigan, 
Minnesota,  Wisconsin,  Missouri, 
Mississippi,  Virginia,  West  Virginia, 
Alabama,  California,  Washington, 
and  Ohio.  2  Washburn's  Law  of 
Real  Property  (6th  ed.),  §  1616, 
note.  The  rule  was  abolished  in 
Iowa  by  c.  159,  Laws  of  1907,  but 
the  law  is  not  retroactive.  See  Bro- 
kaw  V.  Brokaw,  113  N.  W.  469  (Iowa 
1907).  In  many  other  States  the  ap- 
plication of  the  rule  has  been  limited 
bj'  legislation  converting  estates  tail 
into  life  estates  with  remainders  in 
fee.  1  Washburn's  Law  of  Real 
Property  (6th  ed.),  §  219,  note.  See 
Wheelock  v.  Simons,  75  Ark.  19; 
Black  I'.  Webb,  72  Ark.  336;  Albin 
V.  Parmele,  70  Neb.  740. 

Except  so  far  as  limited  by  stat- 
ute pro\'isions,  the  rule  is  usually 
held  to  be  part  of  the  common  law 
in  the  United  States.  Hardage  v. 
Stroope,  58  Ark.  303;  Black  v.  Webb, 


72  .Ark.  336;  WTieelock  r.  Simons,  75 
Ark.  19;  Jones  t-.  Rees,  69  A.  785 
(Del.  1908);  McFall  v.  Kirkpatrick, 
236  111.  281;  Pease  v.  Davis,  225  111. 
408;  Deemer  t'.  Kessinger,  206  111. 
57;  Taney  v.  Fahnley,  126  Ind.  88; 
Hughes  V.  Nicklas,  70  Md.  484;  Sce- 
ger  V.  Leakin,  76  Md.  500;  Waller  v. 
PoUitt,  104  Md.  172;  Cook  v.  Coun- 
cilman, 109  Md.  622;  Stames  v.  Hill, 
112  N.  C.  1;  Walker  v.  Taylor,  144 
N.  C.  175;  Perry  v.  Hackney,  142 
N.  C.  368;  Pitcliford  r.  Limer,  139 
N.  C.  13;  Tyson  v.  Sinclair,  138  N.  C. 
23;  Carver  v.  Clouser,  218  Pa.  St. 
611;  Hastings  v.  Engle,  217  Pa.  St. 
419;  Shapley  v.  Diehl,  203  Pa.  St. 
566;  Eby  v.  Shank,  196  Pa.  St.  426; 
Gadsden  v.  Desportes,  39  S.  C.  131; 
Clark  V.  Neves,  76  S.  C.  484;  Daven- 
port V.  Eskew,  69  S.  C.  292;  Kenne- 
dy V.  Colclough,  67  S.  C.  118;  Lacey 
V.  Floyd,  99  Tex.  112;  Brovni  v. 
Br>'ant,  17  Tex.  Civ.  App.  454; 
Vogt  V.  Vogt,  26  App.  D.  C.  46;  De 
Vaughn  v.  Hutchinson,  165  U.  S. 
566;  Grant  v.  Squire,  2  Ont.  Law 
Rep.  131.  The  rule  was  law  in  Iowa 
pre\'iou8  to  the  statute  of  1907,  c. 

583 


§358. 


EXECUTORY   TRUSTS. 


[chap.  XII. 


rule  disappointed  the  intention  of  settlors  in  most  cases,  and 
gave  an  absolute  disposal  of  the  inheritance  to  the  first  taker, 
where  the  settlor  intended  that  such  first  taker  should  have  only 
an  estate  for  life.^    As  trusts  are  wholly  independent  of  tenure, 

*  For  these  reasons  the  rule  is  now  abolished  in  many  of  the  States  by 
statute.  The  proposition  of  the  text,  however,  should  be  read  in  the  light 
of  the  remarks  of  Agnew,  J.,  in  Yamall's  App.,  70  Penn.  St.  340:  "  In  regard 
to  wills  the  cases  show  that  technical  phrases,  as  well  as  forms  of  expres- 
sion decided  in  other  cases,  are  not  permitted  to  overturn  the  intent  of 
the  testator,  when  that  intent  is  clearly  ascertained  to  be  different  in  the 
will  under  examination  by  the  court.  This  broad  principle  needs  no  cita- 
tion to  support  it,  for  it  is  founded  on  the  universal  rule  that  the  intention 
of  the  testator  is  the  guide  for  the  interpretation  of  wills.  The  rule  in 
Shelley's  Case  is  only  an  apparent  not  a  real  exception  to  this  statement. 
It  sacrifices  a  particular  intent  only  to  give  effect  to  the  main  intent  of 
the  testator.  All  the  authorities  are  agreed  that  this  rule  has  no  place  in 
the  interpretation  of  wills,  and  takes  effect  only  when  the  interpretation 
has  been  first  ascertained.     Mr.  Feame,  Contingent  Remainders,  p.  188, 


159,  which  was  expressly  made  not 
retroactive.  Doyle  v.  Andis,  127 
Iowa,  36;  Ault  v.  Hillyard,  138  Iowa, 
239;  Kepler  f.  Larson,  131  Iowa,  438. 
See  also  Albin  v.  Parmele,  70  Neb. 
740;  Lippincott  v.  Davis,  59  N.  J. 
Law,  241.  For  a  good  historical  re- 
view of  the  rule  see  the  opinion  of 
Lord  Macnaghten,  in  Van  Grutten 
V.  FoxweU,  [1897]  A.  C.  658,  667. 
See  also  Bowen  v.  Lewis,  9  A.  C.  890. 

The  rule  has  been  extended  by 
analogy  to  personalty,  including 
leasehold  estates.  Hughes  v.  Nick- 
las,  70  Md.  484;  Seeger  v.  Leakin,  76 
Md.  500;  Evans  v.  Weatherhead,  24 
R.  I.  502.  But  see  contra,  Jones  v. 
Rees,  69  A.  785  (Del.  1908);  Vogt  v. 
Vogt,  26  App.  D.  C.  46  (semble). 

In  general  the  American  cases 
agree  with  the  English  cases  that 
the  rule  is  an  absolute  rule  of  prop- 
erty, not  a  rule  of  construction,  and 
in  cases  which  come  within  the  rule, 
the  intention  of  the  grantor  or  tes- 

584 


tator  to  create  only  a  life  estate  in 
the  first  taker  will  have  no  effect. 
Hardage  v.  Stroope,  58  Ark.   303 
Hughes    V.    Nicklas,    70    Md.    484 
Travers  v.  Wallace,  93  Md.  507,  513 
Lippincott  v.  Davies,  59  N.  J.  Law, 
241;    Perry  v.  Hackney,',142  N.  C 
368,  375;  Wool  v.  Fleetwood,  136  N. 
C.  460,  469;  Shapley  v.  Diehl,  203 
Pa.  St.  566,  569;  Brown  v.  Bryant, 
17  Tex.  Civ.  App.  454;  Van  Grutten 
V.  FoxweU,  [1897]  A.  C.  658;  Evans 
V.    Evans,    [1892]  2  Ch.   173,    188. 
See  Reilly  v.  Bristow,  105  Md.  326. 
But  there  seems  to  be  some  doubt 
on  this  point  in  some  of  the  States 
See  Wescott  v.  Binford,   104   Iowa 
645;  Doyle  v.  Andis,  127  Iowa,  36 
Kepler  v.  Larson,   131   Iowa,  438 
7  L.  R.  A.  (n.  s.),  1109  and  note 
Granger  v.   Granger,    147  Ind.   95 
Albin  V.  Parmele,  70  Neb.  740;  De 
Vaughn  v.  Hutchinson,   165  U.  S. 
566. 


CHAP.    XII.]  THE    RULE    IN    SHELLEY's    CASE.  (§  358. 

they  ought  not  to  be  affected  by  the  rule,  and  a  few  cases  have 
seemed  to  indicate  that  they  were  withdrawn  from  tlie  opera- 
tion of  it;  ^  but  it  is  now  established  that  the  same  rule  shall 
apply  to  the  same  limitation  whether  it  is  of  an  equitable  or  a 
legal  estate.^  Thus  the  rule  in  Shelley's  Case  will  be  applied  to  a 
gift  to  A.  and  his  heirs  in  trust  for  B.  for  life,  and  remainder  to 
his  heirs,  or  heirs  of  his  body.  The  reason  of  the  rule  as  applied 
to  legal  estates  was  some  real  or  fancied  difliculty  concerning 
tenures,  or  to  bring  estates  one  generation  sooner  into  commerce, 
or  some  other  reason;  for  neither  judges  nor  text-writers  are 
agreed  upon  the  original  reasons  of  the  rule.    The  reason  of  the 

says,  'Nothinp  can  be  better  founded  than  Mr.  Hargrave's  doctrine,  that 
the  rule  in  Shelley's  Case  is  no  medium  for  finding  out  the  intention  of  the 
testator;  that,  on  the  contrary,  the  rule  supposes  the  intention  already 
discovered  and  to  be  a  superadded  succession  to  the  heirs,  general  or  special 
of  the  donee  for  life,  by  making  such  donee  the  ancestor  termiiius  or  stirj>s, 
from  which  the  generation  of  posterity  or  heirs  is  to  be  accounted;  and 
that  whether  the  conveyance  has  or  has  not  so  constituted  an  estate  of 
freehold,  with  a  succession  engrafted  on  it,  is  a  previous  question  which 
ought  to  be  adjusted  before  the  rule  is  thought  of;  that,  to  resolve  that 
point,  the  ordinarj'  rules  for  interpreting  the  language  of  wills  ought  to  be 
resorted  to;  that  when  it  is  once  settled  that  the  donor  or  testator  has 
used  words  of  inheritance  according  to  their  legal  import,  has  applied  them 
intentionally  to  comprise  the  whole  line  of  heirs  of  the  tenant  for  life,  and 
has  really  made  him  the  terminus,  or  ancestor  by  reference  to  whom  the 
Huccession  is  to  be  regulated,  then  comes  the  proper  time  to  inspect  the 
rule  in  Shelley's  Case.'  In  Hileman  v.  Bouslaugh,  1  Harris,  351,  Ch.  J. 
Gibson  expresses  the  same  idea  in  fewer  words,  thus:  '  This  operates  only 
on  the  intention  of  the  testator  when  it  has  been  ascertained,  not  on  the 
meaning  of  the  words  used  to  express  it.  The  ascertainment  is  left  to  the 
ordinary  rules  of  construction  peculiar  to  wills;  but  when  this  is  ascertained, 
is  found  to  be  within  the  rule,  then  there  is  but  one  waj';  it  admits  of  no 
exception.'  " 

'  Withers  v.  Allgood,  cited,  and  Bagshaw  i-.  Spencer,  1  Ves.  150. 

^  Garth  v.  Baldwin,  2  Ves.  646;  Wright  v.  Parsons,  1  Ed.  128;  Brydges 
V.  Brydges,  3  Ves.  120;  Jones  v.  Morgan,  1  Bro.  Ch.  20G;  Webb  v.  Shaftes- 
bury, 3  Myl.  &  K.  599;  Roberts  v.  Dixwell,  1  Atk.  610;  West,  536;  Britton 
V.  Twining,  3  Mer.  175;  Spence  v.  Spence,  12  C.  B.  (n.  8.)  199;  Coape  v. 
Arnold,  2  Sm.  &  Gif.  311;  Noble  v.  Andrews,  37  Conn.  346;  Gushing  v. 
Blake,  30  N.  J.  Eq.  6S9;  Sprague  v.  Sprague,  12  R.  I.  703.  [Van  Grutten  v. 
Foxwell,  [1897]  A.  C.  658;  In  re  Youmane'  Will,  [1901}  1  Ch.  720;  Mc- 
Fall  V.  Kirkpatrick,  236  111.  281;  Jones  v.  Rees,  69  A.  785  (Del.  1908)  sem- 
ble.] 

585 


§  358. 


EXECUTORY  TRUSTS. 


[chap.  XII. 


application  of  the  rule  to  limitations  of  trust  estates  is  to  pre- 
serve a  uniformity  of  the  law  in  relation  to  the  two  kinds  of 
estates  in  land.  This  leads  Mr.  Lewin  to  say,  that  although  the 
rule  is  not  equally  applicable  to  trust  estates,  yet  it  is  equally 
applied}  But  the  rule  will  not  be  applied  to  vest  a  fee  or  fee- 
tail  in  the  first  taker,  unless  the  word  "heir"  is  used  as  a  term 
of  succession,  and  not  as  a  mere  designatio  personoe.  Thus  if 
an  estate  be  devised  to  A.  and  his  heirs  in  trust  for  B.  for  life, 
and  after  his  decease  in  trust  for  the  person  who  shall  then  be 
his  heir,  B.  takes  an  estate  for  life  only,  and  the  person  thus 
designated  takes  the  estate  by  purchase.^  (a)  So  if  the  legal 
estate  is  given  to  A.  in  trust  for  B.  for  life,  and  the  legal  remainder 

1  Lewin  on  Trusts,  88  (5th  ed.). 

2  Greaves  v.  Simpson,  10  Jur.  (n.  s.)  609.    [  Evans  v.  Evans,  [1892]  2 
Ch.  173;  Earnhart  v.  Earnhart,  127  Ind.  397.] 


(a)  It  has  been  said  that  "to 
bring  a  devise  within  the  rule  in 
Shelley's  Case,  the  limitation  must 
be  to  the  heirs  in  fee  or  in  tail  as  a 
nomen  collectiimm  for  the  whole  line 
of  inheritable  blood."  Kuntzle- 
man's  Estate,  136  Pa.  St.  142,  152; 
McCann  v.  McCann,  197  Pa.  St.  452. 
And  the  following  have  been  held 
not  to  be  within  the  rule :  A  devise 
to  a  son  and  at  his  death  "to  his 
next  nearest  blood  relations."  Mc- 
Cann V.  McCann,  197  Pa.  St.  452. 
A  devise  to  a  son  for  life  and  at  his 
death  to  his  "nearest  male  heirs." 
Jones  V.  Jones,  201  Pa.  St.  548.  A 
devise  to  one  "for  and  during  his 
life,  and  after  his  death  to  his  lawful 
heirs  horn  of  his  wife."  Thompson 
V.  Crump,  138  N.  C.  32.  See  also 
Ault  V.  Hillyard,  138  Iowa,  239 
Brown  v.  Brown,  125  Iowa,  218 
Gadsden  v.  Desportes,  39  S.  C.  131 
Stames  v.  Hill,  112  N.  C.  1. 

The   word    "children,"    used    to 
designate  the  successors  in  title,  is 

586 


not  given  the  same  effect  as  the 
word  "heirs''  for  the  purposes  of  the 
rule,  and  excludes  the  operation  of 
the  rule,  Connor  v.  Gardner,  230 
111.  258;  Strawbridge  v.  Strawbridge, 
220  111.  61;  Reilly  v.  Bristow,  105 
Md.  326;  Hoover  v.  Strauss,  215  Pa. 
St.  130;  Clark  v.  Neves,  76  S.  C.  484; 
Brown  v.  Brown,  125  Iowa,  218;  Co- 
well  V.  Hicks,  30  A.  1091  (N.  J.  Ch. 
1895);  in  the  absence  of  a  clear  in- 
tention to  use  the  words  to  mean 
"heirs"  or  "heirs  of  the  body." 
Shapley  v.  Diehl,  203  Pa.  St.  566. 
See  Brown  v.  Brown,  125  Iowa,  218. 
If  the  word  "heirs"  is  used  to  mean 
"children"  it  has  been  held  that  the 
rule  in  Shelley's  Case  does  not  apply. 
Stisser  v.  Stisser,  235  111.  207. 

The  word  "issue"  primarily 
means  heirs  of  the  body,  and  under 
the  rule  would  create  an  estate  tail 
in  the  first  taker  unless  it  were 
shown  to  mean  "children."  Faison 
V.  Odom,  144  N.  C.  107;  HUl  v. 
Giles,   201    Pa.   St.   215. 


CHAP.  XII.]       MEANING    OF   AN    EXECUTORY   TRUST.  [§  359. 

to  the  heirs  of  B.,  at  his  decease  the  rule  cannot  apply;  for  the 
legal  and  equitable  estate  cannot  so  coalesce  that  B.  can  take  a 
fee  either  legal  or  equitable.'  (a) 

§  359.  But  in  order  that  technical  words  may  receive  their 
legal  signification,  and  in  order  that  the  rule  in  Shelley's  Case 
may  be  applied  to  limitations  of  equitable  estates,  the  trusts 
must  be  executed  and  not  executory."^    All  trusts  are  executory  in 

>  Collier  v.  McBean,  34  Beav.  426;  L.  R.  1  Ch.  81. 

*  Egerton  v.  Brownlow,  4  H.  L.  Cas.  210;  Rochford  v.  Fitzmaurice,  2 
Dr.  &  W.  20;  4  Ired.  Eq.  384;  Tatham  v.  Vernon,  29  Beav.  604;  Bacon's 
App.,  57  Penn.  St.  504.  This  distinction  was  very  early  established.  Bale 
V.  Coleman,  8  Vin.  267;  Stamford  v.  Hobart,  3  Bro.  P.  C.  33;  Papillon 
V.  Voice,  2  P.  Wms.  471;  Glcnorchy  v.  Bosville,  t.  Talb.  3;  Gower  v. 
Grosvenor,  Barn.  62;  Roberts  v.  Dixwell,  1  Atk.  607;  Baskerville  v.  Bas- 
kerville,  2  Atk.  279;  Woodhousc  v.  Haskins,  3  Atk.  24;  Read  v.  Snell,  2 
Atk.  648;  Marryat  i-.  Townley,  1  Ves.  102.  Several  of  these  cases  were 
decided  by  Lord  Hardwicke;  but  in  Bagshaw  v.  Spencer,  1  Ves.  152,  he 
nearly  confounded  and  denied  the  distinction.  In  Exel  v.  Wallace,  2  Ves, 
233,  however,  Lord  Hardwicke  explained  his  meaning,  and  desired  to  have 
it  remembered  that  he  did  not  mean  to  say  that  his  predecessors  were 
wrong.  The  distinction,  as  stated  in  the  text,  is  now  firmly  established 
both  in  England  and  the  United  States.  Barnard  v.  Brob}-,  2  Cox,  8; 
Wright  V.  Pearson,  1  Eden,  125;  Austen  v.  Taylor,  id.  366;  Stanley  v.  Len- 
nard,  id.  95;  Lincoln  v.  Newcastle,  12  Ves.  227;  Jervoise  v.  Northumberland, 
1  J.  &  W.  570;  Deerhurst  v.  St.  Albans,  5  Madd.  2:33;  2  CI.  &  Fin.  611; 
Blackburn  i-.  Stables,  2  V.  &  B.  369;  Douglass  v.  Congreve,  1  Beav.  59; 
4  Bing.  N.  C.  1;  5  Bing.  N.  C.  318;  Boswell  v.  Dillon,  1  Dru.  297;  Neves  v. 
Scott,  9  How.  211;  13  How.  268;  4  Kent,  Com.  218  et  seq.;  Garner  v.  Gar- 
ner, 1  Des.  444;  Porter  v.  Doby,  2  Rich.  Eq.  49;  Dennison  v.  Goehring,  7 
Barr,  177;  Findlay  v.  Riddle,  3  Binn.  152;  Edmondson  v.  Dyson,  2  Kelly, 
307;  Wiley  v.  Smith,  3  Kelly,  559;  Wood  v.  Burnham,  0  Paige,  518;  26  Wend. 
19;  Imlay  v.  Huntington,  20  Conn.  162;  Berry  v.  AVilliamson,  11  B.  Mon. 
251;  Home  v.  Lyethe,  4  H.  &  J.  434;  Loring  v.  Hunter,  S  ^'org.  31 ;  Bold  ;•. 
Hutchinson,  5  De  G.,  M.  &  G.  558.    Lord  Northingtou  said  tiiat  the  words 

(a)  The   rule   in    Shelley's   Case  497;  Vogt  i;.  Vogt,  26  App.  D.  C.  46; 

does  not  apply   where  one  of  the  Brown   v.    Wad.sworth,    168    N.    Y, 

estates  sought  to  be  carved  out  is  225;  West's  Estate,  214  Pa.  St.  35; 

equitable  and  the  other  legal,  even  Mannerback's  Estate,    133  Pa.   St. 

when  the  legal  estate  in  remainder  is  342.     But  see  In  re  Youmans'  Will, 

by  operation  of  the  statute  of  uses.  [1901]  1  Ch.  720. 
Slater  v.  Rudderforth,  25  App.  D.  C. 

5S7 


§  359.]  EXECUTORY    TRUSTS.  [CHAP.  XII. 

one  sense  of  the  word ;  that  is,  the  trustee  must  have  some  duty, 
either  active  or  passive,  to  perform,  so  that  the  statute  of  uses 
shall  not  execute  the  estate  in  the  cestui  que  trust,  and  leave 
nothing  in  the  trustee.^  But  such  is  not  the  meaning  of  judges 
when  they  speak  of  executed  trusts,  and  executory  trusts.  These 
words  refer  rather  to  the  manner  and  perfection  of  their  creation 
than  to  the  action  of  the  trustee  in  administering  the  property. 
Thus  a  trust  created  by  a  deed  or  will,  so  clear  and  certain  in  all 
its  terms  and  limitations  that  a  trustee  has  nothing  to  do  but 
to  carry  out  all  the  provisions  of  the  instrument  according  to 
its  letter,  is  called  an  executed  trust.  In  these  trusts,  technical 
words  receive  their  legal  meaning,  and  the  rules  applicable  to 
legal  estates  govern  the  equitable  estates  thus  created.^  On  the 
other  hand,  an  executory  trust  is  where  an  estate  is  conveyed  to 
a  trustee  upon  trust,  to  be  by  him  conveyed  or  settled  upon 
other  trusts  in  certain  contingencies,  or  upon  certain  events,  and 
these  other  trusts  are  imperfectly  stated,  or  mere  outlines  of 
them  are  stated,  to  be  afterwards  drawn  out  in  a  formal  man- 
ner, and  are  to  be  carried  into  effect  according  to  the  final  form 
which  the  details  and  limitations  shall  take  under  the  directions 
thus  given.^    They  are  called  executory,  not  because  the  trust  is 

''executory  trusts"  seemed  to  him  to  have  no  fixed  signification.  Lord 
King  said  a  trust  was  executory  where  the  party  must  come  into  court  to 
have  the  benefit  of  the  will.  Mr.  Lewin  says  the  true  criterion  is,  where 
the  assistance  of  the  court  is  necessary  to  complete  the  limitations,  p.  89. 
Lord  Eldon  said  the  trust  was  executory  where  the  testator  had  not  com- 
pleted the  devise,  but  had  left  something  to  be  done,  so  that  the  court  must 
look  to  the  intention.  Jervoise  v.  Northumberland,  1  J.  &  W.  570.  Lord 
St.  Leonards  distinguishes  the  two  as  follows:  "Has  the  testator  been  what 
is  called,  and  very  properly  called,  his  own  conveyancer?  Has  he  left  it 
to  the  court  to  make  out,  from  general  expressions,  what  his  intention  is, 
or  has  he  so  defined  that  intention  that  you  have  nothing  to  do  but  to  take 
that  which  is  given  you,  and  to  convert  them  into  legal  estate?"  Egerton 
V.  Brownlow,  4  H.  L.  Cas.  210. 

'  Bagshaw  v.  Spencer,  1  Ves.  142;  Egerton  ;;.  Brownlow,  4  H.  L.  Cas. 
210;  Coape  v.  Arnold,  4  De  G.,  M.  &  G.  585. 

'  Wright  V.  Pearson,  1  Eden,  125;  Austen  v.  Taylor,  id.  367;  4  Kent, 
Com.  220;  Jones  v.  Morgan,  1  Bro.  Ch.  206;  Jervoise  v.  Northumberland, 
1  J.  &  W.  559;  Boswell  v.  Dillon,  1  Dru.  291. 

*  Austen  v.  Taylor,  1  Eden,  366;  Wright  v.  Pearson,  id.  125;  Jervoise 

588 


CHAP.  XII.]       MEANING    OF    AN    EXECUTORY   TRUST. 


[§  359. 


to  be  performed  in  the  future,  but  because  the  trust  instrument 
itself  is  to  be  moulded  into  form  and  perfected  according  to  the 
outlines  or  instructions  made  or  left  by  the  settlor  or  testa- 
tor.' (a)  Thus  land  conveyed  to  A.  upon  tru.st,  to  settle  the 
same  upon  B.  and  C  and  their  issue,  in  the  event  of  their  mar- 
riage, is  an  executory  trust."  There  is  a  conveyance  or  settlement 
to  be  executed  by  A.,  and  the  form  or  terms  of  this  conveyance 
or  settlement  is  to  be  determined  by  the  intention  of  the  original 
grantor.^  When  this  conveyance  or  settlement  is  finally  deter- 
mined and  made,  the  trust  becomes  executed  in  the  sense  of  the 
word  as  applicable  to  this  distinction,  and  it  is  afterwards  gov- 

V.  Northumberland,  1  J.  &  W.  ."iTO;  Coape  t'.  Arnold,  4  De  G.,  M.  &  G. 
585;  Neves  v.  Scott,  9  How.  211;  Wiley  v.  Smith,  3  Kelly,  5.59;  Edmondson 
V.  Dyson,  2  Kelly,  307;  Wood  v.  Burnham,  6  Paige,  518;  26  Wend.  19; 
Thompson  v.  Fisher,  L.  R.  10  Eq.  207;  Gushing  v.  Blake,  30  N.  J.  Eq.  689. 
[  See  Gaylord  v.  Lafayette,  115  Ind.  423,  429.] 

1  Ibid.  2  Ibid.  »  Ibid. 


(a)  In  Pillot  V.  Landon,  46  N.  J. 
Eq.  310,  313,  the  distinction  between 
executed  and  executory  trusts  is 
stated  as  follows  by  Garrison,  J.: 
"The  difference  between  executed 
and  executory  trusts  depends  upon 
the  manner  in  which  the  trust  is 
declared.  When  the  limitations  and 
trusts  are  fully  and  perfectly  de- 
clared, the  trust  is  regarded  as  an 
executed  trust;  when,  on  the  con- 
trary, the  creator  of  the  trust,  in- 
stead of  fully  declaring  its  limita- 
tions expresses  in  general  terms  his 
intent,  leaving  the  manner  in  which 
this  intent  is  to  be  carried  into  effect 
substantially  undeclared,  the  trust 
is  regarded  as  executory. 

"In  practice  the  chief  distinction 
between  an  executed  and  an  execu- 
tory trust  lies  in  the  fact  that  the 
former  executes  itself  by  converting 
its  limitations  into  the  correspond- 
ing   legal    estates,    whereas    in    the 


latter,  the  court  may  direct  that 
form  of  settlement  or  conveyance 
which  will  best  give  effect  to  the 
settlor's  intention,  and  for  this  pur- 
pose may  even  disregard  the  con- 
struction the  instrument  would  re- 
ceive at  law. 

"In  the  executory  trust  the  lan- 
guage of  the  settlor  is  considered 
mainly  as  a  guide  to  aid  the  court  in 
carrying  into  effect  his  imperfectly 
declared  purposes.  In  the  executed 
trust  the  grantor  has  been  his  own 
conveyancer,  and  the  equitable  in- 
terests created  by  the  language  he 
has  employed  are  treated  a.s  estates. 
In  trusts  of  this  kind  the  controlling 
inquiry  is,  not  intention,  but  legal 
operation,  and  as  the  court  cannot 
alter  the  nature  of  the  estates  the 
grantor  has  created,  it  will  not  spec- 
ulate as  to  those  purposes  which  he 
has  failed  to  efTectuate."  See  also 
Smith's  Estate,  144  Pa.  St.  428,  434. 

589 


§  360.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

erned  by  all  the  rules  of  an  executed  trust.  The  difference 
between  the  two  kinds  of  trusts  is  this.  In  executed  trusts  the 
rules  of  property  govern,  and  not  the  intention  of  the  settlor, 
if  it  is  contrary  to  the  law  or  rule  of  property.^  Thus  if,  in  an 
executed  trust,  an  estate  is  given  to  A.  in  trust  for  B.  for  life, 
with  remainder  to  his  heirs,  B.  takes  an  equitable  fee  [under 
the  rule  in  Shelley's  Case]  and  may  convey  the  equitable 
inheritance  and  exclude  his  heirs,  although  it  is  perfectly  cer- 
tain that  the  settlor  intended  that  B.  should  take  an  estate  for 
his  life  only.^  But  an  executory  trust  is  settled  and  carried 
into  effect  according  to  the  intention  of  the  settlor.^  Thus  if  an 
estate  is  conveyed  to  A.  in  trust,  with  instructions  to  convey  it 
to  B.  for  life,  wath  remainder  to  his  heirs,  or  to  convey  it  in  trust 
for  B.  for  life,  with  remainder  to  his  heirs,  B.  takes  an  estate  for 
life  only,  and  his  heirs  take  by  purchase  at  his  decease,  if  such 
appeared  to  be  the  intention  of  the  original  gift  or  grant.'* 

§  360.  In  the  history  of  executory  trusts,  still  another  dis- 
tinction has  been  drawn,  or  a  distinction  between  executory 
trusts  created  by  marriage  articles,  and  executory  trusts  created 

1  Choice  V.  Marshall,  1  Kelly,  97;  Schoonmaker  v.  Sheely,  3  Hill,  165; 
Kingsland  v.  Rapelye,  3  Edw.  2;  Brant  v.  Gelston,  2  John.  Ca.  384.  [  Pillot 
V.  Landon,  46  N.  J.  Eq.  310,  313.] 

2  Ibid. 

'  Wood  V.  Burnham,  6  Paige,  513;  26  Wend.  9;  4  Kent,  Com.  219;  1 
West,  Ch.  t.  Hardwicke,  542.  A  mere  direction  to  convey  will  not  render 
the  trust  executory,  if  the  directions  are  so  clear,  and  the  limitations  are 
so  certainly  defined,  that  there  is  nothing  to  do  but  to  convey  in  accord- 
ance with  them.  In  order  that  the  trust  may  be  executory,  there  must  be 
some  room  for  construction,  in  order  to  determine  the  intention  of  the 
settlor;  that  is,  to  determine  what  limitation  shall  be,  and  what  shall  not 
be,  introduced  into  the  conveyance  to  be  made.  Egerton  v.  Brownlow,  4 
H.  L.  Cas.  210;  Austen  v.  Taylor,  1  Ed.  341;  Wight  v.  Leigh,  15  Ves.  564; 
Graham  v.  Stewart,  2  Macq.  H.  L.  Ca.  205;  Herbert  v.  Blunden,  1  Dr.  & 
Walsh,  78;  East  v.  Twyford,  9  Hare,  713;  Doncaster  v.  Doncaster,  3  K.  & 
J.  26;  Stanley  v.  Stanley,  16  Ves.  491;  Glenorchy  v.  Bosville,  1  Lead.  Ca. 
Eq.  20,  and  notes;  McElroy  v.  McElroy,  113  Mass.  509;  Gushing  v.  Blake, 
30  N.  J.  Eq.  689. 

*  Ibid.;  Savage  v.  Tyers,  L.  R  8  Ch.  356.  [  See  Steele  v.  Smith,  66  S.  E. 
200  (S.  C.  1909).] 

590 


CHAP.  XII. I  MARRIAGE    ARTICLES.  [§  300. 

by  wills.  This  is  not  so  much  a  difference  between  two  clas.scs 
of  executory  trusts,  as  it  is  a  difference  between  the  rules  that 
will  be  applied  to  the  interpretation  of  marriage  articles  and 
of  wills,  in  order  to  determine  the  intention  of  the  settlor  or 
the  testator.  Lord  Eldon  once  said,  that  "  there  was  no 
difference  in  the  execution  of  an  executory  trust  created  by 
will,  and  a  covenant  in  marriage  articles;  such  a  distinction 
would  shake  to  their  foundation  the  rules  of  equity."  ^  But  the 
great  chancellor  afterwards  modified  his  expression.'  And  cer- 
tainly there  is  no  difference  in  the  execution  of  the  two  trusts 
when  it  is  settled  what  they  are;  but  there  is  a  difference  in  the 
construction  of  marriage  articles  and  of  wills  in  order  to  reach  the 
intention  of  the  creator  of  the  trusts.  Thus,  in  marriage  articles, 
the  intention  of  the  parties  to  the  articles  is  presumed  to  be  a  pro- 
vision for  the  issue  of  the  marriage,  and  such  construction  is 
given  to  the  articles  as  to  carry  into  effect  this  presumed  inten- 
tion if  possible;  while  in  construing  wills,  in  order  to  settle  the 
limitations  of  a  trust,  there  is  no  such  presumed  leading  inten- 
tion; or,  as  Sir  W.  Grant  put  it,  "I  know  of  no  difference 
between  an  executory  trust  in  marriage  articles  and  in  a  will, 
except  that  the  object  and  purpose  of  the  former  furnish  an 
indication  of  intention,  which  must  be  wanting  in  the  latter. 
Where  the  object  is  to  make  a  provision  by  the  settlement  for 
the  issue  of  a  marriage,  it  is  not  to  be  presumed  that  the  parties 
meant  to  put  it  in  the  power  of  the  father  to  defeat  that  pur- 
pose, and  appropriate  the  estate  to  himself.  If,  therefore,  the 
agreement  be  to  limit  an  estate  for  life  with  remainder  to  the 
heirs  of  the  body,  the  court  decrees  a  strict  settlement  in  con- 
formity to  the  presumable  intention.  But  if  a  will  directs  a 
limitation  for  life  with  remainder  to  the  heirs  of  the  body,  the 
court  has  no  such  ground  for  decreeing  a  strict  settlement." ' 

1  Lincoln  v.  Newcastle,  12  Ves.  230;  and  see  Turner  v.  Sargent,  17  Beav. 
519;  Reed  v.  Palmer,  53  Penn.  St.  379. 

'  Jervoise  v.  Northumberland,  1  J.  &  W.  574;  Townsend  v.  Mayer,  3 
Beav.  443;  Lassence  v.  Tierney,  1  Mac.  &  G.  551;  Gardner  v.  Stevens,  30 
L.  J.  Ch.  199;  Crofton  v.  Davies,  L.  R.  4  C  B.  159. 

»  Blackburn  v.  Stables,  2  Ves.  &  B.  369;  Bale  v.  Coleman,  S  Vin.  267; 

591 


§  361.]  EXECUTORY    TRUSTS.  [CHAP.  XII. 

§  361.  Thus  if,  in  marriage  articles,  the  real  estate  of  the 
husband  or  of  the  wife  is  limited  to  the  heirs  of  the  body  or  to 
the  issue  ^  of  the  contracting  parties,  or  either  of  them,  or  to  the 
issue  of  the  body,  or  to  the  issue  and  their  heirs,^  so  that  the 
words  and  limitations,  taken  in  their  legal  sense,  would  enable 
the  parents,  or  one  of  them,  to  defeat  this  provision  for  the 
children,  equity  will  construe  the  articles  to  mean  that  the 
estate  is  limited  to  the  parents  for  life,  and  the  children  will 
take  at  the  decease  of  their  parents  or  parent  as  purchasers; 
and  equity  will  decree  a  formal  settlement  to  be  drawn  in  such 
way  as  to  carry  out  this  purpose.^  If  a  settlement  is  already 
drawn  after  the  marriage,  but  not  in  accordance  with  this  rule, 
equity  will  correct  and  reform  it  so  as  to  carry  out  this  inten- 
tion.* But  if  the  settlement  was  formally  drawn  out  before 
marriage  contrary  to  this  rule,  the  court  will  presume  that  the 
parties  abandoned  the  articles,  and  entered  into  a  new  agree- 
ment, as  expressed  in  the  settlement.^  If,  however,  a  settle- 
ment before  marriage  is  expressed  on  its  face  to  be  made  to  carry 
out  the  articles,  and  it  does  not  carry  them  out  in  this  respect, 
equity  will  reform  it.^  So  if  it  can  be  shown  in  any  other  way 
that  the  formal  settlement  was  intended  to  carry  out  the  articles, 

Strafford  v.  Powell,  1  B.  &  B.  25;  Synge  v.  Hales,  2  B.  &  B.  508;  Maguire 
V.  Scully,  2  Hog.  113;  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173;  2 
Dr.  &  War.  18;  4  Ir.  Eq.  375;  Jervoise  v.  Northumberland,  1  J.  &  W.  574; 
Deerhurst  v.  St  Albans,  5  Madd.  260. 

1  Dod  V.  Dod,  Amb.  274. 

2  Phillips  V.  James,  2  Dr.  &  Sm.  404. 

3  Handick  v.  Wilkes,  1  Eq.  Cas.  Ab.  393;  Gilb.  Eq.  114;  Trevor  v.  Tre- 
vor, 1  P.  Wms.  622;  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173;  2  Dr. 
&  War.  18;  4  Ir.  Eq.  375;  Cusack  v.  Cusack,  5  Bro.  P.  C.  116;  Davies  v. 
Davies,  4  Beav.  54;  Griffith  v.  Buckle,  2  Vem.  13;  Jones  v.  Langton,  1  Eq. 
Cas.  Ab.  392;  Stonor  v.  Curwen,  5  Sim.  269;  Barnaby  v.  Griffin,  3  Ves.  206; 
Home  V.  Barton,  19  Ves.  398;  Coop.  257;  22  L.  J.  (n.  s.)  Ch.  225.  [  Grier 
V.  Grier,  L.  R.  5  H.  L.  688.] 

*  Warrick  v.  Warrick,  3  Atk.  293;  Sheatfield  v.  Sheatfield,  Ca.  t.  Talb. 
176;  Legg  v.  Goldwire,  id.  20;  Burton  v.  Hastings,  Gilb.  Eq.  113;  over- 
ruling same  case,  1  Eq.  Cas.  Ab.  393;  Briscoe  v.  Briscoe,  7  Ir.  Eq.  129. 

s  Legg  V.  Goldwire,  Ca.  t.  Talbot,  20;  Warrick  v.  Warrick,  3  Atk.  291. 

«  Honor  v.  Honor,  1  P.  Wms.  123;  West  v.  Errissey,  2  P.  Wms.  349l 
Boberts  v.  Kingsley,  1  Ves.  238. 
592 


CHAP.  XII.]  MARRIAGE    ARTICLES.  [§  361. 

and  it  does  not  do  so,  equity  will  reform  it  on  the  ground  of 
mistake/  or  if  the  settlement  is  made  in  the  ver\'  words  of  the 
articles,  and  the  legal  effect  of  the  words  of  the  articles  and 
settlement  is  different  from  the  intention  of  the  parties,  the 
settlement  will  be  corrected  and  reformed  in  order  to  carry  out 
the  exact  intention  of  the  parties.^  If,  however,  there  are  any 
intervening  rights,  as  those  of  an  innocent  purchaser  without 
notice,  his  rights  of  course  will  be  protected.^  So  it  is  estab- 
lished that  daughters  are  included  under  the  general  term  of 
heirs  or  issue,  and  that  they  take  as  purchasers.'*  And  children 
includes  grandchildren.^  This  has  been  held  in  England.^  Of 
com-se  in  the  United  States,  where  primogeniture  is  abolished, 
estates  will  be  settled  upon  sons  and  daughters  equally,  or  upon 
daughters  alone  in  default  of  sons.  But  if  the  children  or  issue 
of  the  marriage  are  provided  for  in  some  other  way,  as  by  por- 
tions to  be  raised  for  them  in  such  manner  that  it  appears  that 
they  are  not  intended  to  take  as  purchasers  of  the  particular 
estate  under  the  settlement,  then  the  rule  in  Shelley's  Case  \\'ill 
prevail,  and  the  parents  or  parent  may  sell  the  whole  estate.^ 
And  so  where  there  is  an  actual  present  conveyance  of  personal 
property  by  a  marriage  contract  executed  before  marriage  in 

»  Bold  V.  Hutchinson,  5  De  G.,  M.  &  G.  568;  Rogers  v.  Earl,  1  Dick. 
294;  1  Sugd.  V.  &  P.  143. 

2  West  V.  Errissey,  2  P.  Wms.  349;  Roberts  v.  Kingsley,  1  Ves.  238; 
Honor  v.  Honor,  1  P.  Wms.  12S;  2  Vem.  658;  Powell  v.  Price,  2  P.  Wms. 
535;  Gaillard  v.  Pardon,  1  McMul.  Eq.  358;  Neves  v.  Scott,  9  How.  197; 
Cause  V.  Hale,  2  Ired.  Eq.  241;  Smith  v.  iMaxwcll,  1  Hill,  Eq.  101;  .\llen  t'. 
Rumph,  2  Hill,  Eq.  1;  Briscoe  v.  Briscoe,  7  Ir.  Eq.  129. 

'  Warrick  v.  Warrick,  3  Atk.  291;  Trevor  i-.  Trevor,  1  P.  Wms.  622; 
West  V.  Errissey,  2  P.  Wms.  349.  But  if  the  purchaser  have  notice  of  the 
articles,  they  may  be  enforced  against  him.  Da^^e8  v.  DaNnes,  4  Beav. 
54;  Thompson  v.  Simpson,  1  Dr.  &  War.  491 ;  Abbott  v.  Geraghty,  4  Ir.  Eq. 
15. 

*  West  V.  Errissey,  2  P.  Wms.  349;  Comyn,  R.  412;  1  Bro.  P.  C.  225. 

»  Scott  V.  Moore,  1  Wins.  (N.  C.)  Eq.  98. 

«  Burton  v.  Hastings,  2  P.  Wms.  535;  Gilb.  Eq.  113;  1  Eq.  Cas.  Ab. 
393;  Hart  v.  Middlehurst,  3  Atk.  371;  Maguire  v.  Scully,  2  Hog.  113;  1 
Beat.  370;  Marryat  i'.  Townley,  1  Ves.  105;  Phillips  i-.  Jones,  4  Dr.  &  Sm. 
406;  3  De  G.,  J.  &  S.  72. 

'  Powell  V.  Price,  2  P.  Wms.  535;  Feame's  Con.  Rem.  103. 
VOL.  I.  —  38  593 


§  363.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

trust  for  the  wife,  and  at  her  death  to  the  heirs  of  her  body,  it 
was  held  to  be  an  executed  trust,  there  being  no  further  con- 
veyances to  be  executed,  and  that  the  rule  in  Shelley's  Case 
applied.^ 

§  362.  In  England,  when  a  married  woman  could  not  convey 
her  interest  in  real  estate,  a  strict  settlement  was  not  ordered 
under  marriage  articles  that  limited  the  husband's  estate  to  the 
heirs  of  the  body  of  the  wife,  for  the  reason  that  this  created  an 
entail  that  could  not  be  barred  without  considerable  difficulty; 
but  since  the  Fines  and  Recoveries  Act,  this  difficulty  is  re- 
moved.^ Nor  will  the  court  order  a  strict  settlement,  if  there  is 
anything  in  the  nature  of  the  limitations,  or  otherwise  on  the 
face  of  the  articles,  which  indicates  that  such  was  not  the  inten- 
tion of  the  parties,  for  the  reason  that  the  rule  now  under  dis- 
cussion was  established  in  order  to  carry  out  the  intention  of 
the  parties.  If,  therefore,  the  intention  of  the  parties  appears 
to  be  in  accordance  with,  or  not  contrary  to,  the  ordinary  rule, 
the  ordinary  rule  will  be  allowed  to  prevail.^ 

§  363.  If  personal  property  is  agreed  to  be  settled  on  the 
parents  for  life,  and  then  to  their  heirs,  or  the  heirs  of  their 
bodies,  the  chattels  will  not  vest  in  the  parents  absolutely,  but 
in  the  heirs  when  they  are  born;  ^  and  it  is  not  necessary  that 
they  should  survive  their  parents,  or  become  actual  heirs,^ 
unless  the  gift  is  to  the  parents  and  their  heirs  living  at  the 

»  Carroll  v.  Renick,  7  Sm.  &  M.  799;  Tillinghast  v.  Coggeshall,  7  R.  I. 
383. 

*  Rochford  t;.  Fitzmaurice,  2  Dru.  &  W.  19;  Highway  v.  Banner,  1  Bro. 
Ch.  587;  Howel  v.  Howel,  2  Ves.  358;  Green  v.  Ekins,  2  Atk.  477;  Honor 
V.  Honor,  1  P.  Wms.  123. 

«  Rochford  v.  Fitzmaurice,  2  Dru.  &  W.  19;  Highway  v.  Banner,  1  Bro. 
Ch.  587;  Howel  v.  Howel,  2  Ves.  358;  Green  v.  Ekins,  2  Atk.  477;  Honor 
V.  Honor,  1  P.  Wms.  123;  Power  v.  Price,  2  P.  Wms.  535;  Chambers  v. 
Chambers,  2  Eq.  Cas.  Ab.  35;  Fitzg.  127. 

*  Hodgeson  v.  Bussey,  2  Atk.  89;  Bam.  195;  Bartlett  v.  Green,  13  Sim. 
218. 

'  Theebridge  v.  Kilbume,  2  Ves.  233. 

594 


CHAP.  XII.]  MARRIAGE    ARTICLES.  [§  304. 

death  of  the  surviving  parent,  or  there  are  other  equivalent 
words.' 

§  364.  If  there  is  a  covenant  in  marriage  articles  to  settle 
personal  property  upon  the  same  trusts,  and  for  the  same  pur- 
poses, as  the  real  estate  is  settled,  the  court  will  not  apply  the 
same  limitations  to  the  personal  as  to  the  real  estate,  for  that 
would  be  to  vest  an  absolute  interest  in  the  heirs  at  their  birth ; 
but  the  court  will  insert  a  provision  making  the  personal  prop- 
erty follow  the  course  of  the  real  estate.^  Courts  will  also  insert 
a  provision  that  the  children  or  issue  shall  take,  as  tenants  in 
common,  and  not  as  joint-tenants,  on  account  of  the  inconven- 
iences of  joint-tenancies,  and  from  the  presumed  intention  of 
the  parties;  ^  and  so  the  court  will  insert  other  words  and  con- 
ditions, and  vary  the  literal  instruction  of  the  articles  in  order 
to  carry  out  the  presumed  intention,  and  promote  a  convenient 
settlement  for  the  protection  and  security  of  all  the  parties,"* 
as  if  the  settlement  is  to  be  of  all  the  property  which  the  settlor 
might  thereafter  become  entitled  to,  it  will  be  construed  to 
embrace  only  the  property  acquired  during  the  marriage.^    The 

1  Read  v.  Snell,  2  Atk.  642. 

^  Stanley  v.  Leigh,  2  P.  Wms.  690;  Gower  v.  Grosvenor,  Bam.  63;  5 
Madd.  348;  Newcastle  v.  Lincoln,  3  Ves.  387,  394,  397;  Scarsdale  v.  Curzon, 
1  John.  &  H.  5L  The  matter  referred  to  in  the  text  seldom  or  never  arises 
in  the  marriage  settlements  made  in  the  United  States,  as  primogeniture 
is  abolished,  and  entails  on  the  eldest  son  are  seldom  resorted  to.  But 
where  personal  chattels  are  made  to  vest  under  a  marriage  settlement 
in  the  eldest  son  as  heir,  and  such  son  dies  under  age,  very  awkward  effects 
follow;  and,  under  covenants  to  settle  personal  property  upon  the  same 
limitations  as  are  applied  to  a  settlement  of  real  estate  wherein  the  eldest 
son  takes  as  heir,  it  was  a  matter  of  great  discussion  in  the  Court  of  Chan- 
cery and  in  the  House  of  Lords,  what  kind  of  provisions  ought  to  be  in- 
serted to  protect  the  parents  and  other  children  in  case  the  eldest  son  dies 
under  age  and  without  issue.    Newcastle  v.  Lincoln,  3  Ves.  387;  12  Ves.  218. 

^  Taggart  v.  Taggart,  1  Sch.  &  Lef.  88;  Rigden  v.  Vallier,  3  Atk.  734; 
Marryat  v.  Townley,  1  Ves.  103.  Joint-tenancy  is  abolished  by  statute  in 
most  of  the  United  States,  with  the  exception,  in  some  States,  of  gifts  and 
grants  to  husband  and  wife. 

*  Kentish  v  Newman,  1  P.  Wms.  234;  Martin  v.  Martin,  2  R.  &  M. 
507;  Master  v.  De  Croismar,  11  Beav.  184;  Targus  v.  Puget,  2  Ves.  194. 

'  Steinberger  v.  Potter,  3  Green,  Ch.  452. 

595 


§  365.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

court  will  not  always  order  a  formal  settlement  to  be  drawn  out, 
but  will  declare  the  meaning  and  intention  of  the  articles,  and 
leave  the  parties  to  act  upon  the  declaration,  as  if  it  was  a 
formal  settlement  drawn  out  and  executed  by  them.^  So  the 
court  will  sometimes  rectify  the  settlement  drawn  under  articles 
by  a  decree,  without  ordering  a  new  deed  to  be  drawn  out  and 
executed.^ 

§  365.  Marriage  settlements,  whether  made  in  pursuance  of 
articles,  or  under  directions  contained  in  wHlls,  or  under  decrees 
of  the  court,  are  matters  in  which  courts  exercise  the  most  liberal 
principles  of  equity.  If  a  settlement  is  drawn  up  under  a  decree, 
and  it  is  not  in  all  respects  in  accordance  with  the  decree,  the 
court  will  set  it  aside,  and  order  a  new  settlement.^  In  Grout  v. 
Van  Schoonhoven,  the  court  ordered  a  new  settlement,  in  sub- 
stance that  the  trust  should  be  for  the  wife  during  her  life  with- 
out power  of  anticipating  the  income;  and  upon  her  death  for 
the  use  of  her  husband  for  life,  in  case  he  survived  her;  and,  after 
the  death  of  both,  to  be  divided  equally  among  all  their  children 
then  living,  and  the  descendants  of  such  as  had  died  leaving 
issue,  per  stirpes;  with  a  power  to  make  advances  with  the  ap- 
probation of  the  trustees  to  the  children,  on  their  attaining  full 
age  or  being  married,  out  of  the  capital  fund,  in  anticipation  of 
the  ultimate  distribution,  in  order  to  set  them  up  in  the  world.^ 
An  advance  cannot  be  made  in  order  that  a  child  may  put  the 
money  in  his  pocket,  but  an  advance  may  be  made  to  trustees 
under  a  marriage  settlement  for  a  child  .^  When  there  was 
power  of  advancement  to  a  married  woman,  it  was  held  that  an 
advance  to  her  husband  to  set  him  up  in  business  might  be 
allowed ;  ^  and  so  where  there  w^as  power  in  a  settlement  to  with- 
draw funds,  and  lay  them  out  in  the  purchase  of  a  trade  for  the 

1  Byam  v.  Byam,  19  Beav.  58. 

»  Tebbitt  v.  Tebbitt,  1  De  G.  &  Sm.  506. 

»  Temple  v.  Hawley,  1  Sandf.  Ch.  154. 

*  Grout  V.  Van  Schoonhoven,  1  Sandf.  Ch.  342. 

»  Roper  V.  Curzon,  L.  R.  11  Eq.  452. 

'  In  re  Kershaw's  Trust,  L.  R.  6  Eq.  322. 

596 


CUAP.  XII.]  CREATED    BY    WILLS.  [§  3G6. 

benefit  of  husband  and  wife,  the  power  may  be  exercised  for  the 
benefit  of  one  after  the  death  of  the  other.^  In  Imlay  v.  Hunt- 
ington, a  husband  covenanted  that  he  would  pay  over  to  certain 
trustees  $10,000,  and  one-half  of  certain  other  expected  moneys 
of  his  intended  wife,  to  be  held  by  said  trustees  in  trust  for  the 
wife  for  the  term  of  twenty  years,  after  which  time  they  were  to 
convey  to  such  persons  as  the  wife  should  appoint.  The  mar- 
riage was  consummated,  and  the  husband  received  §60,000, 
which  he  continued  to  hold  and  manage  as  his  own  during  the 
lifetime  of  his  wife,  making  no  payment  to  the  trustees,  and 
neither  the  trustees  nor  the  wife  requesting  him  to  pay  the  sum 
over,  or  to  make  any  settlement  in  pursuance  of  the  articles. 
On  the  death  of  the  wife,  at  the  end  of  twenty  years,  her  brothers 
and  sisters,  there  being  no  issue  of  the  marriage,  applied  to  the 
court  by  bill  in  equity  for  the  execution  of  the  marriage  settle- 
ment, in  accordance  with  the  articles  and  covenants  entered 
into  by  the  husband  before  marriage:  but  it  was  held  that  it 
was  competent  for  the  wife  to  discharge  the  husband  from  the 
fulfilment  of  the  covenants,  and  to  abandon  the  trust;  that, 
under  the  circumstances  of  the  case,  the  articles  were  abandoned 
by  the  wife  and  all  the  parties;  that  the  wife's  personal  property 
vested  absolutely  in  the  husband;  and  that  the  wife's  heirs 
had  no  right  to  maintain  the  bill  for  any  part  of  her  personal 
estate.^ 

§  366.  In  executory  trusts  created  by  wills,  no  presumption 
arises  a  priori  that  a  provision  was  intended  for  the  children  of 
the  first  taker,  as  in  marriage  settlements,  and  that  such  chil- 
dren were  intended  to  take  as  purchasers.  If  the  trust  be  "  for 
A.  and  the  heirs  of  his  body,"  '  or  "for  A.  and  the  heirs  of  his 
body  and  their  heirs,"  *  or  "for  A,  for  life  and  after  his  decease 

1  Doorly  i-.  Arnold,  18  W.  R.  540. 

*  Imlay  v.  Huntington,  20  Conn.  146;  Jones  v.  Higgins,  L.  R.  2  Eq. 
538. 

'  Harrison  v.  Naylor,  2  Cox,  247;  Bagshaw  t'.  Spencer,  1  Ves.  151;  Mar- 
shall V.  Bousley,  2  Madd.  166;  Robertson  v.  Johnston,  36  Ala.  197. 

*  Marryat  v.  Townley,  1  Ves.  104. 

597 


§  366.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

to  the  heirs  of  his  body,"  ^  A.  will  be  tenant  in  tail;  and  he  may 
disappoint  his  heirs  by  barring  the  entail.  So,  where  a  testator 
directed  an  estate  to  be  settled  on  his  "  daughter  and  her  chil- 
dren, and,  if  she  died  without  issue,"  remainder  over,  the  court 
held  that  the  daughter  was  tenant  in  tail;  and  that  in  a  volun- 
tary devise  the  court  must  take  it  as  they  find  it,  though  upon 
like  words  in  a  marriage  settlement  it  might  be  different.^  So 
where  a  testator  directed  lands  to  be  settled  on  his  "  nephew  for 
life,  remainder  to  the  heirs  male  of  his  body,  and  the  heirs  male 
of  every  such  heir  male  severally  and  successively,  one  after 
another,  as  they  should  be  in  seniority  and  priority  of  birth, 
every  elder  and  the  heirs  male  of  his  body  to  be  preferred  before 
the  younger,"  it  was  held  that,  although  the  nephew  took  by 
a  voluntary  executory  devise,  the  court  must  execute  it  in  the 
words  of  the  vnW  and  according  to  the  rules  of  law,  and  that 
equity  could  not  carry  the  words  further  than  the  same  words 
would  operate  at  law,  and  that  the  nephew  took  an  estate  tail. 
The  words  in  this  case  all  went  upon  the  idea  of  an  entail.^  So 
if  there  is  a  direction  that  the  trustees  shall  not  give  up  their 
trust  until  "a  proper  entail  was  made  to  the  heir  male  by 
them."  ^  But  in  another  similar  executory  trust,  Lord  Eldon 
declined  to  compel  a  purchaser  to  accept  the  title,  on  the  ground 
that  the  entail  was  too  doubtful  to  be  acted  upon  in  so  grave  a 
matter.^  Where  a  testator  devised  real  estate  to  his  daughter, 
then  unmarried,  in  trust  for  her  heirs,  she  to  receive  the  income 
for  her  and  their  support  and  education,  and,  if  she  should  die 
leaving  no  heirs,  then  over  to  her  brothers  and  sisters,  it  was 
held  that  the  word  "income"  passed  the  estate  to  the  daughter, 
that  the  word  "heirs"  was  a  word  of  limitation,  and  that  the 

1  Blackburn  v.  Stables,  2  V.  &  B.  270;  Seale  v.  Seale,  1  P.  Wms.  290; 
Meure  v.  Meure,  2  Atk.  266;  Robertson  v.  Johnston,  36  Ala.  197. 

*  Sweetapple  v.  Bindon,  2  Vem.  536. 

2  Legatt  V.  Sewell,  2  Vem.  551;  McPherson  v.  Snowden,  19  Md.  197. 

*  Blackburn  v.  Stables,  2  V.  &  B.  367;  Marshall  v.  Bousley,  2  Madd. 
166;  Dodson  v.  Dodson,  3  Bro.  Ch.  405. 

*  .Jervoise  v.  Northumberland,  1  J.  &  W.  559;  Woolmore  v.  Burrows, 
1  Sim.  512. 

598 


CHAP,  XII.]       WHO  MAY  ENFORCE  THE  SETTLEMENT.  [§  367. 

daughter  took  an  estate  tail.'  In  the  gift  of  a  fund  the  term 
"heirs  at  law"  means  next  of  kin  or  persons  entitled  under  the 
statute  of  distributions  relating  to  personal  property.^ 

§  367,  In  executory  trusts  under  marriage  articles,  many  dis- 
tinctions arise  upon  the  question,  WTio  may  enforce  their  specific 
performance,  and  compel  the  execution  of  the  formal  deed  and 
the  disposal  of  the  property  in  accordance  with  the  settlement 
that  should  have  been  made  under  the  articles?  Thus  the  gen- 
eral rule  is,  that  parties,  seeking  a  specific  execution  of  such 
articles,  must  be  those  who  come  strictly  within  the  reach  and 
influence  of  the  consideration  of  the  marriage,  or  who  claim 
through  them,  as  the  wife,  or  the  husband,  and  the  issue  of  the 
husband  or  wife,  or  both.  As  a  general  rule,  mere  volunteers, 
or  collateral  relatives  of  husband  or  wife,  cannot  interfere  and 
ask  for  a  specific  performance  of  the  articles.^  (a)     But  there 


1  Allen  V.  Henderson,  49  Pa.  St.  333. 

*  White  V.  Stanfield,  146  Mass.  424. 

'  Vernon  v.  Vernon,  2  P.  Wms.  594;  Edwards  v.  Warwick,  id.  171;  Os- 
good V.  Strode,  id.  245;  Ithell  v.  Beane,  1  Ves.  215;  1  Dick.  132;  Stephens 
V.  Trueman,  1  Ves.  73;  Pulvertoft  v.  Pulvertoft,  18  Ves.  90;  2  Kent,  Com. 
172,  173;  Atherly  on  Mar.  Sett.  145;  Bradish  v.  Gibbs,  3  Johns.  Ch.  550; 
West  V.  Errissey,  2  P.  Wms.  349;  Kettleby  v.  Atwood,  1  Vem.  298,  471; 
Williamson  v.  Codrington,  1  Ves.  512;  Colman  i-.  Sarrel,  1  Ves.  Jr.  50;  3 
Bro.  Ch.  13;  Ellison  v.  Ellison,  6  Ves.  662;  Graham  v.  Graham,  1  Ves.  Jr.  275; 

(a)  In  Re  Cameron  and  Wells,  were  named  as  beneficiaries  of  the 
37  Ch.  D.  32,  37,  Kay,  J.,  said:  executory  trust  under  the  settle- 
"When  any  collateral  takes  an  in-  ment,  could  not  enforce  the  settle- 
terest  under  a  marriage  settlement,  ment  as  against  a  purchaser  for 
it  may  be  the  bargain  between  the  value  from  the  settlor,  since  such 
husband  and  wife  that  the  collateral  children  were  not  parties  to  the  con- 
should  so  take;  but  that  does  not  sideration.  It  was  admitted  that 
make  him  any  the  less  a  volunteer,  children  of  a  wife  by  a  former  mar- 
because  no  consideration  moves  riage  would,  under  the  case  of  Xew- 
from  him,  which  is  the  test  whether  stead  v.  Searles  (1  Atk.  265;  9  .\.  C. 
the  interest  of  the  collateral  is  or  is  320,  n.),  be  treated  differently,  but 
not  that  of  a  volunteer."  It  was  the  court  considered  this  an  except 
there  held  that  children  of  the  bus-  tion  which  should  not  be  extended, 
band   by  a    former  marriage,  who 

599 


§  367.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

are  so  many  exceptions  and  qualifications  to  this  rule,  that  a 
case  is  rarely  decided  upon  it.  The  principle  is,  that,  to  bring 
collateral  relations  within  the  reach  and  influence  of  the  con- 
sideration, there  must  be  something  over  and  above  that  flowing 
from  the  immediate  parties  to  the  marriage  articles,  from  which 
it  can  be  inferred  that  relatives  beyond  the  issue  were  intended 
to  be  provided  for,  and  that,  if  the  provision  in  their  behalf  had 
not  been  agreed  to,  the  superadded  consideration  would  not  have 
been  given.^  While  this  is  the  general  rule,  the  courts  seize  hold 
of  the  slightest  valuable  consideration  to  give  effect  to  the  set- 
tlement in  favor  of  collateral  relatives;  and  it  need  not  appear 
that  these  slight  considerations  were  inserted  in  favor  of  dis- 
tant relatives :  the  court  will  presume  such  to  be  the  case.^  The 
result  of  all  the  cases  is,  that,  if  from  the  circumstances  under 
which  marriage  articles  were  entered  into  by  the  parties,  or  as 
collected  from  the  face  of  the  instrument  itself,  it  appears  to 
have  been  intended  that  the  collateral  relatives  in  a  given  event 
should  take  the  estate,  and  a  proper  limitation  to  that  effect 
is  contained  in  the  articles,  a  court  of  equity  will  enforce  the 
trust  for  their  benefit.  Such  parties  are  not  volunteers  outside 
the  deed,  but  come  fairly  within  the  influence  of  the  consider- 
ation upon  which  it  is  founded.  Such  consideration  extends 
through  all  the  limitations  of  the  articles  for  the  benefit  of  the 
remotest  persons  provided  for,  consistent  with  the  rules  of  law.^ 
But  of  course  there  is  a  more  direct  equity  in  favor  of  a  wife  and 

Wycherly  v.  Wycherly,  2  Eden,  177,  note;  Bunn  v.  Winthrop,  1  Johns. 
Ch.  336;  Gevers  v.  Wright,  3  Green,  Ch.  330. 

1  Osgood  V.  Strode,  2  P.  Wms.  245;  Goring  v.  Nash,  3  Atk.  186;  Hamer- 
ton  V.  Whitton,  2  Wils.  356;  Williamson  v.  Codrington,  1  Ves.  512;  Bleeker 
V.  Bingham,  3  Paige,  246. 

2  Neves  v.  Scott,  9  How.  209;  Stephens  v.  Trueman,  1  Ves.  73;  Edwards 
V.  Warwick,  2  P.  Wms.  171. 

3  Neves  v.  Scott,  9  How.  210;  Canby  v.  Lawson,  5  Jones,  Eq.  32;  Den- 
nison  v.  Goehring,  7  Barr,  175;  King  v.  Whitely,  10  Paige,  465.  See  this 
matter  very  learnedly  discussed  in  Neves  v.  Scott,  9  Monthly  Law  Re- 
porter, 67,  Boston,  June,  1846.  This  decision,  however,  was  overruled 
in  Neves  v.  Scott,  9  How.  98.  The  case  was  again  discussed  before  the  State 
court  of  Georgia,  and  the  opinion  of  the  circuit  court  of  the  district  of 

600 


CHAP.  XII.]  HEIRS    AND    PURCHASE.  [§  369. 

children.'  So  in  respect  to  chattel  interest,  it  has  been  held  that 
a  bond  under  seal,  though  voluntary,  will  uphold  a  decree  for 
the  execution  of  the  trust  in  favor  of  those  whom  the  obligor  is 
under  obligations  to  support,  as  wife  or  children;  for  a  seal  in 
law  imports  a  consideration.-  But  this  doctrine  seems  to  be 
rejected;  and  it  is  now  held  that  neither  wife  nor  child  can  en- 
force a  purely  voluntary  contract  or  [executory]  settlement.' 

§  368.  And  where  a  third  person  —  parent,  agent,  or  friend 
of  the  parties  —  holds  out  any  considerations  of  a  pecuniary 
nature  to  induce  a  marriage,  and  articles  are  drawn  up,  and  a 
marriage  takes  place,  equity  will  compel  the  party  holding  out 
the  inducements  to  make  them  good,  or  specifically  perform 
the  articles."* 


§  369.  If,  however,  in  an  executory  trust  created  in  a  will 
there  are  indications  of  an  intention  that  the  words  "heirs  of 
the  body"  shall  be  words  of  purchase  and  not  of  inheritance, 
they  will  receive  that  construction ;  that  is,  the  intention  of  the 
testator  will  be  carried  out,  if  it  is  sufficiently  clear,  although  the 
same  words  in  an  ordinary  grant  would  create  an  estate  tail. 
Thus,  if  there  are  other  words  in  the  will  that  indicate  that  the 
words  "heirs  of  the  body"  are  w^ords  of  designation,  and  not  of 
inheritance,  such  heirs  will  take  by  purchase,  and  the  first  taker 

Georgia  was  followed.  That  case  was  in  turn  overruled  in  13  How.  268. 
The  judc;mont  of  the  Supreme  Court  of  the  United  States  was,  that  on 
the  face  of  that  instrument  the  consideration  extended  to  brothers  and 
sisters;  and,  further,  that  it  was  an  executed  trust,  and  that  they  had  an 
interest. 

>  Pulvertoft  V.  Pulvertoft,  18  Ves.  99. 

^  Bunn  V.  Winthrop,  1  Johns.  Ch.  336;  Mint  urn  v.  Sejinour,  4  Johns. 
Ch.  500;  Lechmere  v.  Carlisle,  3  P.  Wms.  222;  Walw>Ti  v.  Coutts,  3  Mcr. 
708;  Antrobus  v.  Smith,  12  Ves.  44;  Colman  i'.  Sarrel,  1  Ves.  Jr.  54;  Beard 
V.  Nutthall,  1  Vem.  427. 

3  Jefferys  i'.  Jefferys,  1  Cr.  &  Phil.  138;  HoUoway  v.  Headington,  8  Sim. 
325.     [See  supra,  §  107.] 

*  Hammersley  v.  De  Biel,  2  CI.  &  Fin.  45. 

601 


§  369.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

of  course  will  have  only  an  estate  for  life.  Thus,  if  the  testator 
direct  a  settlement  on  A.  for  life  "without  impeachment  of 
waste,"  ^  or  with  a  limitation  "to  preserve  contingent  remain- 
ders," ^  or  if  he  direct  that  "  care  be  taken  in  the  settlement  that 
the  tenant  for  life  shall  not  bar  the  entail,"  ^  the  superadded 
words  show  the  intention  to  be,  that  the  first  taker  shall  have 
only  an  estate  for  life,  with  no  power  over  the  inheritance.  So, 
where  a  gift  was  in  trust  for  the  separate  use  of  a  married  woman 
for  life,  she  alone  to  receive  the  rent,  and  her  husband  not  to 
intermeddle,  and,  after  her  decease,  to  the  heirs  of  her  body,  the 
wife  took  only  for  life,  and  the  words  "  heirs  of  her  body,"  were 
words  of  purchase;  for  if  the  wife  takes  the  inheritance  in  tail, 
the  husband  will  have  curtesy,  which  would  be  contrary  to  the 
clause  against  his  intermeddling.'*  So,  where  a  testator  directed 
an  estate  to  be  settled  on  a  married  woman  for  life  for  her  sep- 
arate use,  and  at  her  death  on  her  issue,  she  was  not  tenant  in 
tail;  for  there  would  be  only  an  equitable  estate  in  her,  while  a 
legal  estate  would  vest  in  her  issue,  and  the  two  estates  could 
not  coalesce  in  such  manner  as  to  make  her  tenant  in  tail.^  So 
a  direction  to  settle  land  on  A.  and  the  heirs  of  his  body  "as 
counsel  shall  advise,"^  or  as  "the  executors  shall  think  fit,"  ^ 
implies  that  a  simple  estate  tail  is  not  intended,  for  if  it  was 
there  would  be  no  need  of  the  additional  words.  And  where  the 
trust  was  to  settle  on  A.  for  life  without  impeachment  of  waste, 
remainder  to  his  issue  in  strict  settlement,  the  court  directed  the 
estates  to  be  settled  on  A.  for  life,  without  impeachment  for 

'  Glenorchy  v.  Bosville,  Ca.  t.  Talb.  3;  1  Lead.  Cas.  Eq.  1,  and  notes. 
^  Pappillon  V.  Voice,  2  P.  Wms.  471;  Rochford  v.  Fitzmaurice,  1  Conn. 
&  Laws.  158. 

*  Leonard  v.  Sussex,  2  Vem.  526. 

*  Roberts  v.  Dixwell,  1  Atk.  607;  West  Ca.  t.  Hardw.  536;  Turner  v. 
Sargent,  17  Beav.  515;  Stanley  v.  Jackman,  5  W.  R.  302;  Stonor  v.  Cur- 
wen,  5  Sim.  264;  Shelton  v.  Watson,  16  Sim.  542. 

6  Stonor  V.  Curwen,  5  Sim.  268;  Verulam  v.  Bathurst,  13  Sim.  386; 
Coape  V.  Arnold,  2  Sm.  &  Gif.  311;  4  De  G.,  M.  &  G.  574.  And  see  Col- 
lier V.  McBean,  34  Beav.  426. 

«  White  V.  Carter,  2  Eden,  366;  Amb.  670. 

^  Read  v.  Snell,  2  Atk.  642. 

602 


CHAP.    XII.]  HEIRS    AND    PURCHASE.  [§  371. 

waste,  remainder  to  his  sons  successively  in  tail  male,  re- 
mainder to  his  daughters  as  tenants  in  common  in  tail  male, 
with  cross-remainders  in  tail  male,  and  with  limitations  to 
trustees  to  preserve  contingent  remainders.^ 

§  370.  Where  a  testator  devised  his  estate  to  trustees  for  the 
term  of  six  years,  and  to  be  then  divided  among  his  children  or 
their  issue,  and  conveyances  to  be  given  therefor,  and  directed 
that  "in  each  deed  or  writing  to  any  of  my  children  shall  be 
inserted  and  expressed  a  clause  limiting  such  grant  or  interest 
conveyed  to  the  grantee  for  life,  with  remainder  over  to  the  right 
heirs  of  such  grantee,  their  heirs  and  assigns  forever,''  it  was  held 
that  the  deeds  must  be  so  drawn  as  to  give  the  children  a  life- 
estate  only,  and  not  a  fee  in  their  shares.-  The  same  rule  of 
construction  has  been  established  and  enforced  in  Georgia,^  and 
in  Tennessee,*  and  has  been  recognized  in  South  Carolina,^ 
Maryland,®  and  Pennsylvania.^ 

§371.  It  will  be  observed  that  "heirs  of  the  body"  and 
"issue"  are  not  synonymous  terms.  "Heirs"  are  technical 
words  of  limitation,  while  the  word  "issue"  is  prima  facie  a 
word  of  purchase;  and  courts  have  ordered  a  strict  settlement 
when  the  word  "issue"  was  used,  when  it  would  probably  have 

»  Trevor  v.  Trevor,  13  Sim.  108;  1  H.  L.  Cas.  239;  Coape  v.  Arnold,  2 
Sm.  &  Gif.  311;  4  De  G.,  M.  &  G.  574. 

2  Wood  V.  Burham,  6  Paige,  515;  affirmed  on  appeal,  27  Wend.  9.  The 
rule  in  Shelley's  Case  was  in  force  in  New  York  at  the  time,  and  would 
have  applied  to  this  case  if  it  had  not  been  an  executory  trust.  The  rule 
in  Shelley's  Case  was  soon  after  abrogated  in  that  State,  and  the  decision 
has  ceased  to  be  important;  nor  is  the  subject-matter  now  under  discussion 
of  importance  in  any  State  where  the  rule  in  Shelley's  Case  is  abolished  by 
statute. 

3  Edmondson  v.  Dyson,  2  Kelly,  307;  Wiley  v.  Smith,  3  Kelly,  551, 
559;  Neves  v.  Scott,  9  How.  197;  13  How.  2  8. 

*  Loring  v.  Hunter,  S  Yerg.  4. 

'  Gamer  v.  Gamer,  1  Des.  437;  Porter  v.  Doby,  2  Rich.  Eq.  49. 

•  Horner  v.  Lyeth,  4  H.  &  J.  431. 

»  Findlay  v.  Riddle,  a  Binney,  139. 

603 


§371. 


EXECUTORY   TRUSTS. 


[chap.  XII. 


been  otherwise  if  the  word  "heir"  had  been  used.^  (a)  The 
words  "heirs  of  the  body,"  ^  and  "issue,"  ^  embrace  daughters; 
for  they  equally  answer  the  description  and  are  equally  the 
objects  of  bounty;  and  where  the  words  are  words  of  purchase, 

»  Meure  v.  Meure,  2  Atk.  265;  Haddelsey  v.  Adams,  22  Beav.  276; 
Rochford  v.  Fitzmaurice,  2  Conn.  &  Laws.  158;  Bastard  v.  Proby,  2  Cox, 
6;  Dodson  v.  Hay,  3  Bro.  Ch.  405;  Stonor  v.  Curwen,  5  Sim.  264;  Home  v. 
Barton,  G.  Coop.  257;  Crozier  v.  Crozier,  2  Conn.  &  Laws.  311;  Ashton 
V.  Ashton,  cited  in  Bagshaw  v.  Spencer,  1  Coll.  Jur.  402;  McPherson  v. 
Snowden,  19  Md.  197.  Where  a  testator  intends  the  estate  to  go  to  the 
whole  body  of  persons,  in  legal  succession,  constituting  in  law  the  entire 
line  of  descent  lineal,  he  evidently  means  the  same  thing  as  if  he  had  said 
"issue"  or  "heirs  of  the  body;"  or  if  he  intends  it  to  go  to  the  whole  hne 
of  descent,  lineal  and  collateral,  he  means  the  same  thing  as  if  he  had  used 
the  term  "heirs,"  which,  as  a  word  of  art,  describes  precisely  the  same  hne 
of  descent.  Per  Agnew,  J.,  in  Yarnall's  App.,  70  Perm.  St.  340.  And  see 
Kleppner  v.  Laverty,  70  Penn.  St.  70;  Kiah  v.  Grenier,  1  N.  Y.  Sup.  Ct.  388. 

2  Bastard  v.  Proby,  2  Cox,  6. 

»  Meure  v.  Meure,  2  Atk.  265;  Trevor  v.  Trevor,  13  Sim.  108;  Ashton 
V.  Ashton,  ut  supra. 


(a)  The  word  "issue"  in  a  deed 
or  will,  when  used  as  a  word  of 
purchase,  means,  in  the  absence  of 
an  intention  disclosed  to  the  con- 
trary, descendants  generally.  Drake 
V.  Drake,  134  N.  Y.  220,  224;  Soper 
V.  Brown,  136  N.  Y.  244.  But  if 
there  is  a  clear  intention  to  include 
only  children  in  the  word,  the  inten- 
tion will  control.  Chwatal  v.  Schrei- 
ner,  148  N.  Y.  683;  Jackson  v.  Jack- 
son, 153  Mass.  374.  In  a  statute 
"issue"  may  include  an  adopted 
child.  Buckley  v.  Frasier,  153  Mass. 
525. 

The  word  "children"  in  a  deed 
of  gift  or  a  will  does  not  include 
grandchildren  unless  such  intention 
is  clearly  exhibited  or  the  word  ap- 
pears to  have  been  used  as  synony- 
mous with  issue  or  descendants.  Os- 
good V.  Lovering,  33  Me.  464,  469; 
Williams  v.  Knight,  18  R.  1.  333; 
Pride  V.  Fooka,  3  De  G.  &  J.  252. 

G04 


But  if  such  intention  appears  it  will 
be  given  effect.  Ibid.;  Edgerly  f. 
Barker,  66  N.  H.  434.  For  a  case 
distinguishing  between  the  prima 
facie  meaning  of  "issue"  and  "chil- 
dren," see  Pride  v.  Fooks,  3  De  G. 
&  J.  252.  In  a  will  by  a  testator 
who  had  no  children  of  his  own  and 
no  reasonable  expectation  of  any, 
the  word  "children"  has  been  held 
to  include  step-children.  In  re 
Jeans,  72  L.  T.  835.  In  Connor  v. 
Gardner,  230  111.  258,  it  was  said: 
"The  words  'sons,'  'daughters,' 
'child'  and  'children'  are  not  tech- 
nical legal  terms  to  which  a  fixed 
meaning  must  be  given  regardless 
of  the  sense  in  which  they  are  em- 
ployed, but  they  are  flexible  and  sub- 
ject to  construction,  to  give  effect  to 
the  intention  of  the  testator."  For 
the  interpretation  of  such  words  for 
the  purposes  of  the  rule  in  Shelley's 
Case  see  supra,  §  358  and  note. 


CHAP.  XII.]  HEIRS    AND    PURCHASE.  [§  373. 

the  settlement,  in  default  of  sons,  will  be  made  upon  daughters, 
as  tenants  in  common  in  tail,  with  cross-remainders.^  In  the 
United  States,  the  settlement  would  be  made  upon  sons  and 
daughters  in  common,  with  cross-remainders  in  default  of  issue, 
unless  the  direction  was  to  settle  upon  some  particular  one  of 
the  heirs  of  the  body  or  issue. 

§  372.  If  the  limitations  of  an  executory  trust  are  imperfectly 
or  defectively  declared  in  a  will,  the  court  will  rectify  the  limi- 
tations, and  order  the  settlements  to  be  made  in  accordance 
with  the  intention  of  the  testator,  and  to  be  drawn  up  in  proper 
form  to  effectuate  that  intention.-  But  if  a  testator  undertake 
to  be  his  own  conveyancer,  and  himself  draw  up  in  his  will  all 
the  particulars  of  the  limitations  upon  which  he  desires  his 
property  to  be  settled,  intending  them  to  be  final  and  to  be 
carried  into  effect  in  the  trusts,  the  court  is  bound  by  the  words, 
as  in  Austen  v.  Taylor,  where  Lord  Northington  said  that  "the 
testator  had  referred  no  settlement  to  the  trustees  to  complete, 
but  had  declared  his  own  uses  and  trusts,"  and  that  there  was 
no  authority  in  the  court  to  vary  them.' 

§  373.  \Mien  a  testator  has  devised  lands  in  strict  settlement, 
and  then  devises  personal  chattels  as  heirlooms,  to  be  held  by,  or 
in  trust  for,  the  parties  entitled  to  the  use  of  the  real  estate 
under  the  limitations  of  the  settlement;  or  when  he  expresses  a 
desire  that  the  heirlooms  should  be  held  upon  the  same  trusts 
as  the  real  estate,  —  "  so  far  as  the  rules  of  law  and  equity  will 
permit,"  the  tenant  for  life  will  have  the  use  of  the  heirlooms, 

1  Marryat  v.  Townley,  1  Ves.  105;  Mcure  i'.  Meure,  2  Atk.  265;  Trevor 
V.  Trevor,  13  Sim.  108;  1  H.  L.  Ca.  239;  Bastard  v.  Proby,  2  Cox,  6;  .\8hton 
V.  Ashton,  in  Spencer  i^.  Bagshaw,  ut  supra;  Shelton  i-.  Wateon,  16  Sim.  543. 

2  Franks  v.  Price,  3  Beav.  182;  Doncaster  v.  Doncaster,  3  K.  &  J.  26; 
Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173;  2  Dr.  <t  War.  21. 

'  Austen  v.  Taylor,  1  Eden,  368.  This  case,  however,  has  been  criti- 
cised. See  Green  v.  Stephens,  19  Ves.  76;  Jervoise  v.  Northuml^erland. 
1  J.  &  W.  572.  And  see  East  v.  Twyford,  9  Hare,  713;  Meure  v.  Meuro,  2 
Atk.  265;  Harrison  v.  Naylor,  2  Cox,  247. 

605 


§  374.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

and  they  will  vest  absolutely  in  the  first  tenant  in  tail,  upon 
his  birth,  though  he  die  immediately  after.^  In  such  cases,  the 
court  regards  the  trust,  either  as  executed,  or,  if  the  trust  is 
executory,  that  it  has  no  authority  to  insert  a  limitation  over 
in  case  of  the  tenant  in  tail  dying  under  twenty-one.  But  such 
a  limitation  over  is  not  illegal;  and  if  the  bequest  of  the  heir- 
looms is  clearly  executory,  and  if  the  intention  of  the  testator  is 
plainly  manifested  that  no  person  shall  take  the  chattels  abso- 
lutely who  does  not  live  to  become  possessed  of  the  real  estate, 
the  court  will  execute  the  intention  by  directing  the  insertion  of 
a  limitation  that  the  absolute  interest  of  the  first  tenant  in  tail, 
if  he  should  die  under  twenty-one,  should  go  over  to  the  next 
person  in  remainder.^  And  so  where  the  absolute  vesting  of  the 
chattels  is  coupled  with  the  actual  possession,  and  is  therefor 
suspended  until  the  death  of  the  tenant  for  life,  the  chattels 
will  vest  in  the  child,  who,  after  the  death  of  the  tenant  for 
life,  shall  fulfil  all  the  requisites  of  being  tenant  in  tail  in 
possession.^  (a) 

§  374.  If  the  words  of  a  will,  taken  in  their  ordinary  sense, 
create  a  joint-tenancy,  the  court  cannot  order  a  settlement  giving 
a  tenancy  in  common,  as  it  may  do  under  marriage  articles.  But 
in  some  cases,  where  a  testator  is  providing  for  his  children,  or 

1  Foley  V.  Burnell,  1  Bro.  Ch.  274;  Vaughan  v.  Burslem,  3  Bro.  Ch.  101; 
Newcastle  v.  Lincoln,  3  Ves.  387;  Carr  v.  Erroll,  14  Ves.  478;  TrafTord  v. 
Trafford,  3  Atk.  347;  Doncaster  v.  Doncaster,  3  K.  &  J.  26;  Rowland 
V.  Morgan,  6  Hare,  463;  2  Phill.  674;  Gower  v.  Grosvenor,  Barn.  Ch.  54; 
5  Madd.  337,  overruled;  Evans  v.  Evans,  17  Sim.  108;  ToUemache  v.  Coven- 
try, 2  CI.  &  Fin.  611;  8  Bligh  (n.  3.),  547;  Stapleton  v.  Stapleton,  2  Sim. 
(n.  8.),  212;  Deerhurst  v.  St.  Albans,  5  Madd.  232,  overruled;  Scarsdale 
V.  Curzon,  1  John.  &  H.  40,  where  all  the  cases  are  cited  and  commented  on. 

2  Potts  V.  Potts,  3  Jo.  &  Lat.  353;  1  H.  L.  Cas.  671;  Trafford  v.  Traflford, 
3  Atk,  347;  Lincoln  v.  Newcastle,  3  Ves.  387. 

'  Scarsdale  v.  Curzon,  1  John.  &  H.  40. 

(a)  In  a  devise  of  plate  and  a  trust  or  cut  down  the  devisee's  in- 
leasehold  house,  the  words  "to  be  terest  to  a  life  estate.     In  re  John- 
enjoyed  with  and  to  go  with  the  ston,  26  Ch.  D.  538. 
title,"  do  not  create  an  executory 

606 


CHAP.  XII.]        WHAT    POWERS    WILL    BE    INSERTED.  [§  375. 

where  a  grandparent  in  loco  jMreiitis  is  providing  for  his  grand- 
children, the  court  will  order  a  settlement  that  will  create  a 
tenancy  in  common.'  And,  generally,  executory  trusts  under 
wills  will  be  construed  in  the  same  manner  as  marriage  articles 
entered  into  after  marriage.^ 

§  375.  When  a  settlement  is  directed  in  an  executory  trust, 
but  there  is  no  direction  as  to  the  powers  to  be  given  under  it, 
the  court  cannot  order  the  insertion  of  any  powers,^  except  per- 
haps the  power  of  leasing,  which  generally  is  an  implied  power 
to  enable  a  party  to  enjoy  the  estate.^  But  if  the  executory 
articles  or  the  will  contain  a  direction  to  insert  the  "usual 
powers,"  powers  to  lease  for  twenty-one  years,^  of  sale  and  ex- 
change,^ of  varying  the  securities,^  of  appointing  new  trustees,^ 
and  (according  to  the  nature  of  the  property)  of  partition,  of 
leasing  mines,  and  of  granting  building  leases,  will  be  inserted.^ 
But  there  is  a  distinction  between  powers  for  the  management 
and  enjoyment  of  the  estate,  and  powers  which  are  personally 
beneficial  to  one  or  more  particular  persons,  such  as  powers  of 
jointure,  to  charge  portions,  or  to  raise  moneys  for  a  particular 
purpose.'**  The  court  cannot  therefore  order  these  latter  powers 
to  be  inserted  under  the  direction  to  insert  the  usual  powers,  for 
there  is  no  rule  by  which  the  court  could  be  governed  in  reduc- 

1  Synge  v.  Hales,  2  B.  &  B.  499;  Marryat  v.  Townley,  1  Vos.  102.  But 
there  were  other  circumstances  in  these  cases  that  indicated  a  tenancy  in 
common.    McPherson  v.  Snowden,  19  Md.  197. 

*  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  158. 

'  Wheete  v.  Hall,  17  Ves.  80;  Brewster  v.  Angell,  1  J.  &  W.  628. 

*  Woolmore  v.  Burrows,  1  Sim.  518;  Fearne's  P.  W.  310;  but  see  the 
late  cases.  Turner  v.  Sargent,  17  Beav.  515;  Scott  v.  Steward,  27  Beav.  367; 
Charlton  v.  Kendall,  1  Hare,  296. 

*  Hill  t'.  Hill,  6  Sim.  144;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312. 

«  Hill  V.  Hill,  6  Sim.  144;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312;  Peake 
V.  Penlington,  2  V.  <fe  B.  311. 

'  Sami)ayo  v.  Gould,  12  Sim.  426. 

8  Lindow  t'.  Fleetwood,  6  Sim.  152;  Sampayo  v.  Gould,  12  Sim.  426; 
Brewster  v.  Angell,  1  J.  &  W.  628. 

9  Hill  V.  Hill,  6  Sim.  145;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312. 
»»  Hill  V.  Hill,  6  Sim.  144. 

C07 


§  375.]  EXECUTORY    TRUSTS.  [CHAP.  XII. 

ing  the  corpus  of  the  estate.^  So  if  certain  particular  powers 
are  directed  to  be  inserted,  the  usual  powers  will  be  qualified  by 
the  direction.  Thus,  where  it  was  directed  that  the  settlement 
should  contain  a  power  of  leasing  for  twenty-one  years,  a  power 
of  sale  and  exchange,  and  of  appointment  of  new  trustees,  it 
was  held  that  a  power  of  granting  building  leases  could  not  be 
inserted.^  So  the  powers  must  be  inserted  and  executed  as  they 
are  directed;  as  where  a  power  was  directed  to  be  inserted  of 
selling  and  exchanging  estates  in  one  county,  and  all  other  usual 
powers,  it  was  held  that  the  powers  could  not  be  extended  to 
estates  in  other  counties.^  And  where  a  testator  directed  the 
insertion  of  a  power  of  making  leases,  and  otherwise  according  to 
circumstances,  and  of  appointing  new  trustees,  the  court  refused 
to  insert  a  power  of  sale  and  exchange,  saying  that,  if  where 
nothing  is  expressed  nothing  can  be  implied,  it  is  impossible, 
where  something  is  expressed,  to  imply  more  than  is  expressed, 
especially  where  the  will  notices  what  powers  are  to  be  given.* 
But  under  particular  directions  as  to  certain  powers,  and  general 
directions  that  other  usual  powers  should  be  inserted,  the  two 
directions  being  separate  and  independent  of  each  other,  it  was 
held  that  a  power  to  appoint  new  trustees  might  be  inserted.^ 
Where  proper  powers  of  making  leases  or  otherwise  were  directed 
to  be  reserved  in  the  settlement  to  the  tenants  for  life  while 
qualified  to  exercise  them,  and  when  disqualified  to  the  trustees, 
and  a  power  of  sale  and  exchange  was  inserted  in  the  settlement. 
Lord  Eldon  held  that  it  was  improperly  introduced ;  ^  and  Sir  T. 
Plummer  gave  a  similar  decision,  on  the  ground  that  the  tenant 
for  life  ought  not  to  have  a  power  of  sale  unless  it  was  expressly 
directed,  nor  ought  the  trustees  to  have  such  a  power  in  the 
absence  of  an  express  direction.^    But  where  there  was  a  settle^ 

^  Higginson  i'.  Barneby,  2  S.  &.  S.  516. 

^  Pearse  v.  Baron,  Jac.  158. 

3  Hill  V.  Hill,  6  Sim.  141. 

<  Brewster  v.  Angell,  IJ.  &  W.  625;  Home  v.  Barton,  Jac.  439. 

^  Lindow  v.  Fleetwood,  6  Sim.  152. 

«  Brewster  v.  Angell,  1  J.  &  W.  625. 

^  Home  V.  Barton,  Jac.  437. 

608 


CHAP.  XII.]        WHAT    POWERS    WILL    BE    INSERTED.  (§  376. 

ment  of  stock  with  a  power  of  varying  the  securities,  and  also  a 
covenant  to  settle  real  estate  upon  the  same  trusts  and  with 
like  powers,  it  was  held  that  a  power  to  sell  and  exchange  was 
properly  introduced  in  analogy  to  the  power  of  varying  the 
securities.' 

§  376.  In  drawing  up  the  final  deed  of  settlement  under  ex- 
ecutory articles  or  a  will,  the  intention  of  the  settlor  is  to  be 
carried  out  if  possible.  If  the  intention  conflicts  with  any  of  the 
rules  of  law,  it  shall  be  executed  so  far,  and  as  near  as  it  can  be. 
The  doctrine  of  cypm  applies  to  this  class  of  executor}- trusts,  (a) 
Thus,  if  a  settlement  is  directed  which  would  create  a  per- 
petuity, the  court  will  order  a  settlement  which  shall  carry  the 
trust  as  far  as  it  can  extend  without  running  counter  to  the 
rules  against  perpetuities.  As  where  there  was  a  devise  to  a 
corporation  in  trust  to  convey  to  A.  for  life,  and  after  his  death 
to  his  first  son  for  life,  and  so  on  to  the  first  son  of  such  first 
son  for  life;  and,  in  default  of  male  issue,  then  to  B.  for  life, 
and  to  his  son  for  life  after  the  death  of  B.,  and  so  as  in  the 
case  of  A.,  Lord  CowT)er  said  the  attempt  to  create  a  perpetuity 
was  vain,  yet  the  directions  should  be  complied  with,  so  far  as 
consistent  with  the  law,  and  he  directed  that  all  the  sons 
already  born  should  take  estates  for  life  in  succession,  with 
limitations  to  unborn  sons  in  tail.^  But  if  the  devise  is  such 
that  it  cannot  be  carried  into  effect,  in  any  form  approximat- 
ing the  intention  of  the  testator,  without  contravening  the  law 
against  perpetuities  or  remoteness,  the  whole  trust  will  be 
void.^ 

1  William  v.  Carter,  Append,  to  Treatise  on  Powers,  945  (8th  ed.); 
Elton  V.  Elton,  27  Beav.  634;  Home  v.  Barton,  Jac.  437. 

*  See  §  383;  Humberston  v.  Humbereton,  1  P.  Wms.  332;  2  Vem.  737; 
Pr.  Ch.  455;  Parfitt  v.  Hember,  L.  R.  4  Eq.  443;  Peard  v.  Kokcwick,  15  Beav. 
173;  Lyddon  v.  Ellison,  19  Beav.  565;  Williams  v.  Teal,  6  Hare,  239,  and 
cases;  Vanderplank  v.  King,  3  Hare,  1;  Monypenny  v.  Dering,  16  M.  &  W. 
418. 

*  Blagrave  v.  Hancock,  16  Sim.  371. 

(a)  See  infra,  §  390. 
VOL.  I.  —  39  609 


§  377.]  PERPETUITIES    .^JSTD    ACCUMULATIONS.       [CHAP.  XIII. 


CHAPTER  XIII. 

PERPETUITIES   AND   ACCUMULATIONS. 

§  377.    Definitions  of  a  perpetuity. 

§  378.    Executory  devises  —  springing  and  shifting  uses. 

§  379.    Growth  of  rule  against  perpetuities. 

§  380.     Application  of  the  rule.    Indefinite  failure  of  issue. 

§  381.  Applies  to  the  possible  vesting  of  estates  —  not  to  the  actual. 

§  382.  Applies  equally  to  trust  and  legal  estates. 

§  383.  An  equitable  interest  that  may  not  vest  within  the  rule  is  void. 

§23. 
§  384.  Distinction  between  private  trusts  and  charitable  trusts. 

§  385.  A  proper  trust  to  raise  money  to  be  applied  contrary  to  the 

rule. 
Making  estates  inalienable. 
§  386.  Equitable  estates  cannot  be  made  inaUenable  in  England. 

§§  386  a,  386  6.    How  they  may  be  made  inalienable  in  some  of  the  United 

States. 
§  387.  Exception  in  the  case  of  married  women. 

§  388.  How  trusts  can  be  limited,  so  that  cestui  que  trust  cannot 

alienate.     See  §  815  a. 
§  389.  Limitation  of  personal  estate  to  such  tenant  in  tail  as  first 

attains  twenty-one. 
§  390.    When  courts  will  alter  trusts  and  when  not. 
§§  391,  392.  Statutes  of  various  States  in  relation  to  perpetuities. 
Accumulations. 
§  393.  Rule  respecting  trusts  for  accumulations. 

§  394.  In  England  the  rule  was  altered  by  the  Thellusson  Act. 

§  395.  Construction  of  the  TheUusson  Act. 

§  396.  Rule  against  accumulations  —  when  it  appHes  and  when  not. 

§  397.  Application  of  the  income  in  cases  of  illegal  directions  to 

accumulate. 
§  398.  Statutes  in  various  States  as  to  accumulations. 

§  399.  Accumulations  for  charitable  purposes. 

§  400.  Accumulations  in  cases  of  life  insurance. 

§  377,   That  the  same  rules  apply  to  trusts  as  to  legal  estates 
is  further  apparent  from  the  rule  against  perpetuities.    A  per- 
petuity has  been  declared  to  be  "an  estate  unalienable,  though 
610 


CHAP.  XIII. J  DEFINITIONS   OF    A    PERPETUITY.  [§  377. 

all  mankind  should  join  in  the  conveyance;"  '  and  an  executory- 
devise  is  said  to  be  "a  perpetuity  as  far  as  it  goes."  Again,  it 
has  been  said,  that  "  a  perpetuity  is  when  if  all  that  have  inter- 
est join,  yet  they  cannot  pass  the  estate."  ^  These  are  charac- 
teristics of  a  perpetuity.  There  are  other  descriptions  given,  as 
that  "  a  perpetuity  is  a  thing  odious  in  the  law,  and  destructive 
to  the  commonwealth :  it  would  stop  commerce  and  prevent  the 
circulation  of  property."  ^  Others  have  described  the  rule  of 
law  as  respects  the  period  of  remoteness,  rather  than  the  thing 
itself  called  a  perpetuity;*  thus,  "a  perpetuity  is  a  limitation 
tending  to  take  the  subject  out  of  commerce  for  a  longer  period 
than  a  life  or  lives  in  being  and  twenty-one  years  beyond,  and, 
in  the  case  of  a  posthumous  child,  a  few  months  more,  allowing 
for  the  term  of  gestation."  ^  IVIr.  Saunders  says:  "A  perpetuity 
may  be  defined  to  be  a  future  limitation,  restraining  the  owner 
of  the  estate  from  alienating  the  fee-simple  of  the  property,  dis- 
charged of  .such  future  use  or  estate,  before  the  event  is  deter- 
mined, or  the  period  is  arrived,  when  such  future  use  or  estate 
is  to  arise.  If  that  period  is  within  the  bound  described  by 
law,  it  is  not  a  perpetuity."  ®  This  describes  the  thing  itself, 
and  not  the  rule  of  law,  or  the  length  of  time,  which  may  vary. 
Mr.  Lewis  gives  a  fuller  definition:  "A  perpetuity  is  a  future 
limitation,  whether  executory,  or  by  way  of  remainder,  and  of 
either  real  or  personal  property,  which  is  not  to  vest,  until  after 
the  expiration  of,  or  will  not  necessarily  vest  within,  the  period 
fixed  and  prescribed  by  law  for  the  creation  of  future  estates 
and  interests;  and  which  is  not  destructible  by  the  persons  for 
the  time  being  entitled  to  the  property,  subject  to  the  future  lim- 
itation, except  with  the  concurrence  of  the  individual  interested 
under  that  limitation."  ^    If  such  person  is  not  yet  in  being, 

»  Scattergood  v.  Edge,  Salk.  229. 

2  Washborne  v.  Downes,  1  Ch.  Cas.  213. 

'  Duke  of  Norfolk's  Case,  1  Vern.  164. 

*  Stanley  v.  Leigh,  2  P.  Wms.  688. 

'  Rand.  Perp.  48. 

«  Uses  and  Trusts,  204. 

'  Lewis  on  Perpetuity,  164.    Jarman's  Treatise  on  Wills  contairfl  this 

611 


§377. 


PERPETUITIES    AND    ACCUMULATIONS.     [CHAP.  XIII. 


as  he  may  not  be  after  an  extended  period,  of  course  the  estate 
cannot  be  conveyed,  even  if  all  the  world  join  in  the  deed,  (a) 

marked  sentence:  "Te  teneam  moriens  is  the  dying  lord's  apostrophe  to 
his  manor,  for  which  he  is  forging  these  fetters  that  seem,  by  restricting 
the  dominion  of  others,  to  extend  his  own."  1  Jar.  on  Wills,  226,  note 
(ed.  1861). 


(a)  For  a  historical  review  of  the 
cases  showing  the  development  of 
the  rule  see  Gray  on  the  Rule  against 
Perpetuities  (2d  ed.),  §§  123-200. 
The  rule  is  there  stated  as  follows: 
"No  interest  is  good  unless  it  must 
vest,  if  at  all,  not  later  than  twenty- 
one  years  after  some  life  in  being 
at  the  creation  of  the  interest."  Ibid. 
§201. 

It  is  frequently  said  that  the  pur- 
pose of  the  rule  is  to  prevent  re- 
straints upon  alienation  of  property 
by  the  creation  of  remote  interests 
in  it  which  are  inalienable  by  nature; 
but,  although  this  is  undoubtedly  a 
usual  result  of  its  operation,  it  seems 
better  to  regard  the  rule  as  aiming 
to  prevent  the  creation  of  remote 
imvested  interests  rather  than  to 
prevent  restraints  upon  alienation 
of  the  property  itself  or  of  vested 
interests  in  it.  In  other  words,  the 
rule  against  perpetuities  concerns  it- 
self solely  with  the  time  for  the 
vesting  of  the  limitations  over,  not 
with  the  duration  of  the  prior  estate. 
See  Winsor  v.  Mills,  157  Mass.  362, 
365;  Gray  v.  Whittemore,  192  Mass. 
367;  Lembeck  v.  Lembeck,  73  N.  J. 
Eq.  427;  Loomer  v.  Loomer,  76  Conn. 
522;  Pulitzer  v.  Livingston,  89  Me. 
359;  Gray  on  Perpetuities  (2d  ed.), 
§§  269,  278;  but  see  8  Harv.  Law 
Rev.  211;  Missionary  Soc.  v.  Hum- 
phreys, 91  Md.  131,  criticised  in 
Gray  on  Perpetuities  (2d  ed.), 
§  245  c. 

612 


If  the  prior  estate  falls  with  the 
void  limitation  over,  its  failure  is  not 
because  of  its  long  duration  but  be- 
cause of  an  expressed  or  implied  in- 
tention of  the  donor  or  testator  that 
it  should  be  conditional  upon  the 
vahdity  of  the  limitations  over,  as 
where  it  is  only  part  of  a  general 
scheme  which  fails  because  the  limi- 
tations over  cannot  take  effect.  Pit- 
zel  V.  Schneider,  216  111.  87;  Central 
Trust  Co.  V.  Egleston,  185  N.  Y.  23; 
Reid  V.  Voorhees,  216  111.  236; 
Schuknecht  v.  Schultz,  212  111.  43. 
See  Smith  v.  Chesebrough,  176  N.  Y. 
317;  Landram  v.  Jordan,  25  App.  D. 
C.  291,  302.  Whenever  it  appears 
that  the  prior  estate  was  intended  as 
an  independent  gift  or  grant  to  take 
effect  irrespective  of  the  gift  over, 
the  invalidity  of  the  latter  because 
of  remoteness  has  no  effect  upon  the 
former.  Georgia  Code  [1895],  § 
3102;  Chapman  v.  Cheney,  191  111. 
574;  Nevitt  v.  Woodburn,  190  111. 
283;  Quinlan  v.  Wickman,  233  111.  39; 
Johnson's  Trustee  i*.  Johnson,  79 
S.  W.  293  (Ky.  1904);  Graham  v. 
Whitridge,  99  Md.  248,  282;  First 
Universalist  Society  v.  Boland,  155 
Mass.  171;  Matter  of  Mount,  185 
N.  Y.  162;  In  re  Gage,  [1898]  1  Ch. 
498;  Patching  v.  Barnett,  51  L.  J. 
Ch.  74.  See  note  to  Saxton  v.  Web- 
ber (Wis.),  20  L.  R.  A.  509;  Edgerly 
V.  Barker,  66  N.  H.  434;  In  re  Dug- 
dale,  38  Ch.  Div.  176.  And  the 
same  is  true  in  case  of  a  void  at- 


CHAP.  XIII.]  EXECUTORY    DEVISES.  [§  378. 

§  37S.  Executory  devises  are  a  species  of  testamentary  dis- 
positions, allowed  by  courts  of  law,  and  when  properly  exercised, 
they  pass  the  legal  estate  or  interest  to  all  persons  in  favor  of 
whom  the  dispositions  are  made.  They  are  devises  to  take 
effect  at  a  certain  time  in  the  future,  or  upon  a  certain  event, 
and  in  favor  of  certain  persons.  Limitations  by  way  of  spring- 
ing or  shifting  uses  are  similar  in  effect,  except  that  they  are 
created  by  deeds  inter  vivos,  and  are  based  upon  the  statute  of 
uses.  Whenever  the  event  happens  when  a  shifting  or  spring- 
ing use  is  to  take  effect,  the  statute  of  uses  vests  the  legal  seizin 
and  ownership  in  the  person  entitled  by  virtue  of  the  use.  These 
executory  devises,  and  shifting  and  springing  uses,  must  vest  in 
the  persons  intended  to  be  benefited  within  the  time  allowed  by 
law,  or  they  will  be  declared  illegal  and  of  no  effect.  The  same 
rules  apply  in  equit}'  to  trusts.  In  cases  of  trusts  the  legal  estate 
is  vested  in  certain  trustees,  and  their  heirs;  but  the  beneficial 
interest,  or  equitable  estate,  is  given  by  the  grantor,  testator, 
or  settlor  to  such  person  or  persons,  and  upon  such  terms  and 
upon  such  events,  as  he  shall  declare.  The  settlor  can  change 
and  shift  the  beneficial  enjoyment  of  the  equitable  estate  from 
one  person  to  another,  in  the  future,  in  a  manner  analogous  to 
the  limitations  of  springing  or  shifting  uses  under  the  statute  of 
uses.^  (a)  Courts  of  equity  always  take  special  care  that  future 
estates  or  interests  shall  not  be  destroyed  by  the  present  user 

'  Harrison  v.  Harrison,  36  N.  Y.  543. 

tempt  to  impose  a  restraint  upon  the  upon  some  future  contingency.   But 

alienation  of  a  vested  interest.    Mat-  attempted  restraints  upon  power  to 

ter  of  Murray,  78  N.  Y.  S.  165,  75  alienate  vested  interests  come  under 

App.  Div.  246;  Johnson's  Trustee  i'.  an  entirely  different  rule.    See  infra, 

Johnson,  79  S.  W.  293  (Ky.  1904).  §  386  et  seq. 

The  chief  reason    why    the  rule  (a)  See  Powers  i-.  Bullwinkle,  33 

against    perpetuities    has    been    so  S.  C.  293;  Glover  v.  ("ondell,  1G3  111. 

often  regarded  as  aimed  against  re-  566;  Smith  v.  Kimbell,  153  111.  368 

straints  upon  alienation  seems  to  be  Welch  v.   Brimmer,  169  Mass.  204 

that  with  few  exceptions  restraints  Naylor  v.   Godman,    109   Mo.   543 

upon  the  power  to  alienate  an  inter-  Gray    on     Perpetuities     (2d    ed.), 

est  in  property  can  be  imposed  only  §§  268,  317. 
by  making  the  interest  conditional 

613 


§  379.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

of  the  property;  and  that  the  limitations  of  future  equitable 
interests  shall  not  transcend  the  limits  assigned  for  the  limi- 
tation of  similar  legal  interests  or  executory  devises,  and  shifting 
and  springing  uses  at  law. 

§  379.  The  rule  against  perpetuities  has  been  gradually  estab- 
lished by  judicial  decisions,  and  affords  a  most  notable  instance 
of  the  nice  adaptation  of  the  principles  of  the  common  law  to  the 
decision  of  a  question  which  requires  at  once  a  due  regard 
for  the  rights  of  persons  and  property,  and  a  careful  considera- 
tion of  these  larger  principles  of  public  policy  so  essential  to  the 
welfare  of  communities  and  States.  For  public  policy  is  opposed 
to  the  perpetual  settlement  of  property  in  families  in  such  man- 
ner that  it  is  forever  inalienable,  or  inalienable  so  long  as  there 
may  be  a  person  to  take,  answering  the  designation  of  some 
testator  who  died  generations  before.  The  first  stand  of  the 
judges  was  to  allow  only  those  limitations  which  would  take 
effect  at  the  end  of  one  life  from  the  death  of  the  testator.^ 
This  was  afterwards  modified  to  include  two  or  more  lives  in 
being,  and  running  at  the  same  time,  "  or  where  the  candles  are 
all  burning  at  once;"  for  it  is  plain  that  such  a  space  of  time  is 
only  one  life  in  being,  —  that  of  the  longest  liver.-  The  next 
step  was  much  debated;  but  it  was  finally  settled,  that  an  exec- 
utory devise  might  be  made  to  vest  at  the  end  of  lives  in  being 
and  twenty-one  years  after,  to  allow  for  the  infancy  of  the  next 
taker,  who  by  reason  of  infancy  could  not  alienate  the  estate.^ 
The  statute  of  10  &  11  Wm.  III.,  c.  16,  having  provided  that 

1  Pells  V.  Brown,  Cro.  Jac.  590;  1  Eq.  Cas.  Ab.  187,  c.  4  (a.  d.  1621); 
see  Snowi;.  Cutler,  1  Lev.  135,  t.  Raym.  162;  1  Keb.  151,  752,  800;  2  Keb. 
11,  145,  296;  1  Sid.  153. 

2  Goring  v.  Bickerstaff,  PoUexf.  31;  1  Ch.  Cas.  4;  2  Freem.  163  (1664); 
2  Harg.  Jurid.  Arg.  46;  Lloyd  v.  Carew,  Shower,  P.  C.  137;  Pr.  Gh.  72. 

3  Taylor  v.  Biddal,  2  Madd.  289;  Freem.  243;  1  Eq.  Cas.  Ab.  188,  c.  11; 
F.  C.  R.  432;  Laddington  v.  Kime,  1  Raym.  203;  Gore  v.  Gore,  2  W.  Kel. 
204;  2  P.  Wms.  28;  2  Stra.  948;  Scattergood  v.  Edge,  12  Mod.  277;  Duke 
of  Norfolk's  Case,  3  Ch.  Cas.  32;  Ch.  R.  229;  2  Freem.  72;  PoUexf.  223; 
Massenburgh  v.  Ash,  1  Vem.  234;  Maddox  v.  Staine,  t.  Talb.  228;  2  Harg. 
Jurid.  Arg.  50. 

614 


CHAP.  XIII.]  STATEMENT    OF   THE    RULE.  [§  380. 

children  en  ventre  sa  mere,  born  after  their  father's  death,  should 
for  the  purposes  of  the  limitations  of  estates  be  deemed  to  have 
been  born  in  his  lifetime,  a  further  extension  of  nine  or  ten 
months  was  allowed  for  the  period  of  gestation.'  The  next  step 
was  to  allow  a  period  of  nine  months  for  gestation  at  the  begin- 
ning of  the  term,  as  the  life  in  being  during  which  the  term 
would  run  might  be  that  of  a  child  en  ventre  sa  mere?'  Much 
discussion  arose  upon  each  one  of  these  steps.^  For  instance, 
the  term  of  twenty-one  years,  it  was  said,  could  not  be  allowed 
as  a  term  in  gross,  and  without  reference  to  the  infancy  of  some 
person  interested  in  the  estate;  this  question  was  not  settled 
until  Cadell  r.  Palmer,  in  the  House  of  Lords  in  1833,  when  it 
was  finally  determined,  that  twenty-one  years  might  be  allowed 
as  a  term  in  gross,  without  reference  to  the  infancy  of  any  per- 
son, but  that  the  period  of  nine  months  for  gestation  should  be 
allowed  in  cases  only  where  the  gestation  had  commenced  *  of 
some  persons  who,  if  born,  would  take  an  interest  in  the  estate. 
By  such  steps,  by  imperceptible  degrees,  and  after  two  cen- 
turies of  doubt  and  litigation,  and  unaided  by  legislation,  the 
judges  framed  and  completed  the  great  rule  against  perpetuities.'' 

§  380.  Thus  all  future  legal  estates  which  arise  by  way  of 
executory  devise,  conditional  limitation,  or  shifting  and  spring- 

»  Stephens  v.  Stephens,  Cos.  t.  Talb.  228;  Forrest,  22S;  Goodtitle  v. 
Woods,  WiUes,  211;  7  T.  R.  103  (n.);  Sheffield  i-.  Orrery,  3  Atk.  282;  Gul- 
liver V.  Wicket,  1  Wils.  185;  Bullock  v.  Stones,  2  Ves.  521;  Goodman  v. 
Goodright,  2  Burr.  873. 

*  Long  V.  Blackall,  7  T.  R.  100;  2  Harg.  Jurid.  Arg.  105;  6  Cm.  Dig. 
488. 

»  Davies  v.  Speed,  12  Mod.  39;  2  Salk.  675;  Holt,  731;  Bostock's  Case, 
Ley,  56;  Roe  v.  Tranmer,  2  Wils.  75;  Lloyd  v.  Carew,  Show.  P.  C.  137; 
Pr.  Ch.  72;  2  Harg.  Jurid.  Arg.  36;  Carwardine  v.  Carw-ardine,  1  Ed.  34; 
Blandford  v.  Thackerell,  2  Ves.  Jr.  241;  1  Sand.  Uses  ct  Tr.  198;  Thellus- 
8on  V.  Woodford,  4  Ves.  337;  Routledge  v.  Dorrill,  2  Ves.  Jr.  357;  Keily 
V.  Fowler,  Wilmot,  306;  Beard  v.  Westcott,  5  Taunt.  393;  5  B.  &  A.  801; 
T.  &  R.  25;  Bengough  v.  Edridge,  1  Sim.  173,  271. 

*  CadcU  V.  Palmer,  7  Bligh  (n.  s.),  202;  10  Bing.  140;  1  CI.  &  Fin.  372; 
1  Jarm.  Wills,  222. 

'  Le^-is  on  Perpetuity,  pp.  110-162;  1  Powell  on  Devisees  by  Jar.  3S9, 
n.   [Gray  on  Perpetuities,  (2d  ed.)  §  201  el  scq.,  §  411  e^  scq.] 

615 


§  380.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

ing  uses,  must  vest  within  a  life  or  lives  in  being  at  the  death  of 
the  testator,  and  twenty-one  years;  and,  in  case  the  person  in 
whom  the  estate  or  interest  should  then  vest  is  en  ventre  sa  mere, 
nine  months  more  will  be  allowed;  and  all  estates  created  as 
aforesaid,  and  so  limited  that  they  may  not  vest  within  that 
time,  are  void.^  If  the  estates  are  created  and  limited  by  deeds 
inter  vivos,  the  lives  in  being  must  be  those  persons  who  are 
living  at  the  execution  of  the  deed,  and  not  at  the  death  of  the 
grantor  or  settlor.^  And  if  an  absolute  term  is  taken,  and  no 
anterior  term  for  a  life  in  being  is  referred  to,  such  absolute 
term  cannot  be  longer  than  twenty-one  years;  ^  but  a  term  of 


^  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  3  Gray,  149;  Sears 
V.  Russell,  8  Gray,  86;  1  Shep.  Touch.  126;  4  Kent,  Conn.  128  and  notes; 
2  Fearne,  Cont.  Rem.  50;  Nightingale  v.  Burrell,  15  Pick.  Ill;  6  Cru.  Dig. 
tit.  38,  c.  17,  §  23;  Cadell  v.  Palmer,  1  CI.  &  Fin.  372,  423;  Bacon  v.  Proctor, 
T.  &  R.  31;  Mackworth  v.  Hinxman,  2  Keen,  658;  Ker  v.  Duncannon,  1 
Dr.  &  War.  509;  Com.,  &c.  v.  De  Clifford,  id.  245;  Welsh  v.  Foster,  12  Mass. 
97;  Tilbury  v.  Barbut,  3  Atk.  617;  Conklin  v.  Conklin,  3  Sandf.  Ch.  64; 
Tyte  V.  WiUis,  Ca.  t.  Talb.  1;  Att.  Gen.  v.  Gill,  2  P.  Wms.  369;  Nottingham 
V.  Jennings,  1  id.  25;  Kampf  v.  Jones,  2  Keen,  756;  Miller  v.  Macomb,  26 
Wend.  229;  Tator  v.  Tator,  4  Barb.  431;  Ring  v.  Hardwicke,  2  Beav.  352; 
Ferris  v.  Gibson,  4  Edw.  707;  Egerton  v.  Brownlow,  4  H.  L.  Cas.  1,  160. 
[  Chilcott  V.  Hart,  23  Colo.  40;  Georgia  Code,  (1895)  §  3102;  Post  v.  Rohr- 
bach,  124  111.  600;  Quinlan  v.  Wickman,  233  111.  39;  Pitzel  v.  Schneider,  216 
111.  87;  Schuknecht  v.  Schultz,  212  111.  43;  Merritt  v.  Bucknam,  77  Me. 
253;  Andrews  v.  Lincoln,  95  Me.  541;  Towle  v.  Doe,  97  Me.  427;  Graham 
V.  Whitridge,  99  Md.  248,  274;  Universalist  Soc.  v.  Boland,  155  Mass.  171; 
Shepperd  v.  Fisher,  206  Mo.  208;  Merrill  v.  Am.  Baptist  Union,  73  N.  H. 
414;  Edgerly  v.  Barker,  66  N.  H.  434;  Kountz's  Estate,  213  Pa.  St.  390; 
Lawrence's  Estate,  136  Pa.  St.  354;  Fitchie  v.  Brown,  211  U.  S.  321;  In  re 
Frost,  43  Ch.  Div.  246;  hi  re  Ashforth,  [1905]  1  Ch.  535;  In  re  Hancock, 
[1901]  1  Ch.  482;  In  re  Bence,  [1891]  3  Ch.  242;  In  re  Dawson,  39  Ch. 
Div.  155;  In  re  Harvey,  39  Ch.  Div.  289.] 

*  Lewis  on  Perpetuity,  171,  172.  Mr.  Lewis  observes  an  inconsistency 
in  taking  Uves  in  being  at  the  death  of  the  testator,  if  the  future  interest 
is  created  by  will,  and  lives  in  being  at  the  date  or  execution  of  the  deed, 
if  such  interests  are  created  by  deed.  But  it  should  be  remembered  that 
a  will  speaks  as  at  the  death  of  the  testator,  while  a  deed  speaks  as  at  the 
time  of  its  execution,  so  that  there  is  no  inconsistency  in  principle.  See 
Tregonwell  v.  Sydenham,  3  Dow.  194;  2  Jar.  on  Wills,  257;  Ed.  1861.  [  In 
re  Gage,  [1898]  1  Ch.  498.] 

'  Crooke  v.  De  Vandes,  9  Ves.  197;  Palmer  v.  Holford,  4  Russ.  403; 

616 


CHAP.  XIII. J  STATEMENT    OF   THE    RULE.  [§  380, 

any  number  of  years  may  be  taken,  provided  the  term  is  so 
connected  with  some  Hfe  or  Hves  in  being  that  the  interest  must 
vest  in  some  person  living  at  the  death  of  the  testator  and  at  the 
time  of  the  vesting.^  So  estates  limited  to  take  effect  after  an 
indefinite  failure  of  issue  of  a  living  or  deceased  person  are  void, 
for  the  reason  that  the  issue  of  such  persons  may  not  fail  until 
after  the  term  of  a  life  or  lives  in  being  and  twenty-one  years  has 
expired.^  But  a  limitation  over  in  case  the  heirs  of  A.'s  body 
living  at  her  death  die  before  reaching  the  age  of  twenty-one,  is 
not  void  if  A.  leave  no  heirs  of  her  body,  but  it  takes  effect  at 
her  death  .^ 


Speakman  v.  Speakman,  8  Hare,  180.  [See  Edgerly  v.  Barker,  66  N.  H. 
434;  Towie  v.  Doe,  97  Me.  427;  Andrews  v.  Lincoln,  95  Me.  541.] 

»  Laclalan  v.  Rej-nolds,  9  Hare,  796. 

^  Randolph  v.  Wendel,  4  Sneed,  646;  Van  Vechten  v.  Pearson,  5  Paige, 
512;  Van  Vechten  v.  Van  Vechten,  8  id.  104;  Hone  v.  Van  Schaick,  20  Wenil. 
564;  Watkins  v.  Quarles,  23  Ark.  179;  Campbell  v.  Harding,  2  Rus.  &  My. 
390;  Condy  v.  Campbell,  2  CI.  &  Fin.  421,  427;  Harrison  v.  Harrison,  36 
N.  Y.  543;  Allen  v.  Henderson,  49  Penn.  St.  233;  Fisher  t'.  Webster,  L.  R. 
14  Eq.  287;  Newill  t-.  Newill,  L.  R.  7  Ch.  2.53;  Roe  v.  Jeffery,  1  T.  R.  .589; 
Hawley  v.  James,  5  Paige,  318;  16  Wend.  61;  Miller  v.  Macomb,  2  id.  229; 
9  Paige,  265;  Lorillard  v.  Coster,  5  id.  172;  Boehm  v.  Clark,  9  Ves.  580; 
Black  V.  McAulay,  5  Jones,  L.  375;  Jackson  v.  Billinger,  18  Johns.  368; 
Fisk  V.  Keen,  35  Maine,  349;  Bramlet  v.  Bates,  1  Sneed,  554;  Jordan  t-. 
Roach,  32  Miss.  481 ;  Gray  v.  Bridgforth,  33  Miss.  312;  Tongue  v.  Nutwell,  13 
Md.  415;  Jones  v.  Miller,  13  Ind.  337;  Chism  i-.  WiUiams,  29  Mo.  288;  Dodd 
V.  Wake,  8  Sim.  615;  Trafford  v.  Boehm,  3  Atk.  440;  Ellicombe  v.  Gompertz, 
3  Myl.  &  Cr.  127;  Murray  v.  Addenbrook,  4  Russ.  407;  Hayes  v.  Hayes, 
id.  311 ;  Bell  t-.  Phj-n,  7  Ves.  453;  Thackeray  i^.  Sampson,  2  S.  &  S.  214;  Cross 
V.  Cross,  7  Sim.  201;  Bradshaw  v.  Skilbeck,  2  Bing.  N.  C.  182;  Budd  v. 
State,  22  Md.  48;  Johnson  t;.  Currin,  10  Penn.  St.  498;  Bedford's  App.,  40 
id.  18;  Deihl  v.  King,  6  Serg.  &  R.  29;  Eichelberger  v.  Barnitz,  17  Serg.  A: 
R.  293;  Rice  t'.  Satterwhite,  1  Dev.  &  B.  Eq.  69;  Postell  v.  Postell,  Bail. 
Ch.  390;  Conklin  v.  Conklin,  3  Sandf.  Ch.  64;  Braehear  v.  Marcy,  3  J.  J. 
Marsh.  89;  Allen  v.  Parkam,  5  Munf.  457;  Mazyck  v.  Vanderhost,  Bail. 
Ch.  48;  Adams  t;.  Chaplin,  1  Hill,  Eq.  265;  Lanesborough  v.  Fox,  Ca.  t.  Talb. 
262;  Bennett  v.  Lowe,  5  Moor.  &  P.  485;  Smith  v.  Dunwoody,  19  Ga.  237; 
McRee  v.  Means,  34  Ala.  378;  Powell  v.  Brandon,  24  Miss.  343;  Armstrong 
I'.  Armstrong,  14  B.  Mon.  333.  As  to  the  legislation  in  the  various  States 
upon  the  failure  of  issue,  see  2  Washburn,  Real  Prop.  683  (3d  ed.).  [  See 
Smith  V.  Kimbell,  153  111.  368.] 

»  Egbert  v.  Schultz,  29  Ind.  242. 

617 


§  381.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  381.  It  will  be  observed,  that,  in  determining  whether  a 
particular  devise  is  contrary  to  the  rule  against  perpetuities,  the 
inquiry  is  not  whether  the  contingency  upon  which  the  estate 
is  to  vest  actually  occurs  within  the  time  limited  by  the  rule, 
but  whether  it  is  possible  that  the  event  may  not  happen  within 
the  time.  If  it  is  possible  that  the  event  upon  which  an  execu- 
tory devise  or  shifting  or  springing  use  is  to  vest  in  some  person 
may  not  happen  within  the  time,  the  executory  estate  is  void, 
although  in  fact  the  event  actually  happens  within  the  time.^ 
And  it  must  further  be  observed,  that,  if  the  estate  is  to  vest  in 
some  persons  within  the  time  limited,  it  will  not  be  obnoxious 
to  the  rule  against  perpetuities,  even  if  such  person  may  not  be 
entitled  to  the  actual  enjoyment  of  the  property;  that  is,  the 
rule  as  to  perpetuities  deals  with  the  vesting  of  the  title,  and  not 
M'ith  the  actual  recejjtion  of  the  profits  of  an  estate."^  A  gift  may 
be  to  unborn  children  for  life  and  then  to  an  ascertained  person, 
if  the  vesting  of  the  estate  in  the  latter  is  not  postponed  too  long. 
The  person  who  is  to  take  must  become  certain  within  the 
period,  the  right  of  possession  may  be  postponed  longer,  (a) 

1  Post,  §  393;  Langdon  v.  Simson,  12  Ves.  295;  O'Neill  v.  Lucas,  2  Keen, 
313;  Moore  v.  Moore,  6  Jones,  Eq.  132;  Welch  v.  Foster,  12  Mass.  97;  Craig 
V.  Hone,  2  Edw.  Ch.  554;  Robinson  v.  Bishop,  23  Ark.  378;  Sears  v.  Put- 
nam, 102  Mass.  5.    [  Gray  on  Perpetuities  (2d  ed.),  §  214.] 

2  Loring  v.  Blake,  98  Mass.  253;  Murray  v.  Addenbrook,  4  Russ.  407; 
Phipps  ;;.  Kelynge,  2  V.  &  B.  57,  n.  (c);  Curtis  v.  Lukin,  5  Beav.  147;  Otis 
V.  McLellan,  13  Allen,  339;  Yard's  App.,  64  Penn.  St.  95.  [  Conn.  Trust 
Co.  V.  HoUister,  74  Conn.  228;  Armstrong  v.  Barber,  239  111.  389;  Planner 
V.  Fellows,  206  111.  136;  Gray  v.  Whittemore,  192  Mass.  367;  Stone  v.  Forbes, 
189  Mass.  163;  Hull  v.  Osborn,  151  Mich.  8;  Gates  v.  Seibert,  157  Mo.  254; 
Lembeck  v.  Lembeck,  73  N.  J.  Eq.  427;  Kountz's  Estate,  213  Pa.  St.  390; 
Shallcross's  Estate,  200  Pa.  St.  122;  Wainwright  v.  Miller,  [1897]  2  Ch. 
2.55.  See  also  Wil'oer  v.  Wilber,  165  N.  Y.'  451;  Matter  of  Roberts,  98  N. 
Y.  S.  809;  112  App.  Div.  732;  Wells  v.  Squires,  102  N.  Y.  S.  597;  117  App. 
Div.  .502  (affirmed  191  N.  Y.  529);  Quade  v.  Bertsch,  72  N.  Y.  S.  916;  65 
App.  Div.  600  (affirmed  173  N.  Y.  615).] 

(a)  A  devise  or  bequest  of  either  gencies  which  may  by  any  possibility 

a  legal  or  an  equitable  interest  to  a  not  happen  within  the  period  set  by 

class  of  persons  the  members  of  which  the  rule  for  the  vesting  of  estates,  is 

are  to  be  determined  upon  con  tin-  void  as  to  all  members  of  the  class.  Re 

G18 


CHAP.  XIII.] 


STATEMENT   OF  THE   RULE. 


l§  381. 


Moreover,  if  a  certain  estate  is  to  vest  within  the  time  on  a 
contingency  which  actually  occurs,  the  devise  is  not  afFected  by 
the  fact  that  the  estate  was  limited  to  take  effect  at  another  time 
in  the  event  of  an  alternate  contingency  which  may  be  too  re- 
mote.^ (CL)     If  two  constructions  may  be  put  upon  a  will,  one 

1  Seaver  v.  Fitzgerald,  141  Mas-s.  401.    [  Gray  v.  Whitteniore,  192  Ma.ss. 
367,  372;  Brown  v.  Wright,  194  Mass.  540;  In  re  Bowles,  Page  v.  Page, 


Whitten,  62  L.  T.  391;  Patching  v. 
Bamett,  51  L.  J.  Ch.  74  ;  In  re 
Mervin,  [1891]  3  Ch.  197;  In  re 
Gage,  [1898]  1  Ch.  498;  In  re  Bence, 
[1891]  3  Ch.  242;  Kountz's  Estate, 
213  Pa.  St.  390.  But  see  Edgerly  v. 
Barker,  66  N.  H.  434,  where  con- 
trary to  the  general  rule,  the  court 
applied  the  cy  prbs  doctrine  and  gave 
effect  to  the  intention  of  the  testator 
up  to  the  limit  of  time  allowed  by 
the  rule,  cutting  off  the  excess.  Thus 
aremaindoraftcrlifeinterests  to  such 
grandchildren  of  the  testator  as  may 
live  to  attain  twenty-five  years  of  age 
is  void,  since  some  of  the  class  may  be 
bom  after  the  death  of  the  testator, 
and  in  that  event  it  may  not  be  pos- 
sible to  determine  the  share  of  each 
member  of  the  class  until  more  than 
twenty-one  years  after  tlie  cessation 
of  lives  in  being.  Re  Whitten,  62  L. 
T.  391.  As  was  said  in  In  re  Daw- 
son, 39  Ch.  Div  155,  "The  rule  with 
regard  to  perpetuities  is  that  every 
member  of  the  class,  where  it  is  a 
question  of  a  class  gift,  must  of  neces- 
sity take  within  the  time  allowed." 

It  is  immaterial  that  as  events 
turn  out  the  class  is  actually  deter- 
mined within  the  period  set  by  the 
rule,  e.  (].,  that  no  grandchild  is  born 
after  the  death  of  the  testator.  The 
rule  acts  as  to  possibilities  at  the 
time  of  the  testator's  death,  or,  in 
case  the  future  estates  are  created  by 
deed,  at  the  time  the  deed  is  exe- 


cuted and  delivered.  And  in  deter- 
mining these  possibilities  the  courts 
refuse  to  consider  a  hving  person  as 
incapable  of  having  issue.  In  re 
Dawson,  39  Ch.  Div.  155;  White  v. 
Allen,  76  Conn.  185. 

In  case  of  a  gift  to  a  class  to  be 
determined  in  the  future,  e.  g.,  to 
grandchildren,  a  distinction  must  be 
carefully  drawn  between  postpone- 
ment of  their  enjoyment  or  possession 
for  more  than  twenty-one  years  after 
the  death  of  their  parent  and  the 
postponement  of  a  vesting  of  their 
interests.  If  the  share  of  each  mem- 
ber of  the  class  is  to  vest  at  his  par- 
ent's death,  the  rule  is  not  violated 
by  a  provision  that  the  share  shall 
not  be  paid  to  him  until  he  attains 
twenty-five  or  until  all  the  members 
of  the  class  attain  that  age.  Gray  v. 
Whittemore,  192  Mass.  367,  373  et 
seq.;  In  re  Tumey,  [1899]  2  Ch.  739. 
See  Ogden  v.  McLane,  73  N.  J.  Eq. 
159. 

The  rule  of  perpetuities  does  not 
apply  to  reversions,  Kasey  v.  Fidel- 
ity Trust  Co.,  131  Ky.  609;  First 
Universalist  Soc.  r.  Boland,  155 
Mass.  171;  and  \\'ill  not  prevent  a 
trust  from  resulting  for  the  heirs  of 
the  grantor  upon  failure  of  a  de- 
clared trust  or  completion  of  its  pur- 
pose at  a  time  beyond  the  Umit  set 
by  the  rule  for  the  vesting  of  estates. 
Hopkins  v.  Grimshaw,  165  U.  S.  342. 

(a)  Thus  where  a  life  estate  was 

619 


§382. 


PERPETUITIES    AND    ACCUMULATIONS. 


CHAP.  XIII. 


of  which  will  offend  against  the  rule  against  perpetuities,  and 
the  other  not,  the  construction  which  will  not  offend  against 
the  rule  will  be  adopted,  if  in  other  respects  it  can  be  sustained.^ 
And  so  a  will  speaks,  upon  the  subject  of  remoteness,  from  the 
time  of  the  last  codicil,  and  not  from  the  date  of  the  original 
will.2  (a) 

§  382.   The  same  rule  applies  with  equal  force  in  law  and 
equity,  and  trusts  and  beneficial  or  equitable  estates  are  subject 

[1905]  1  Ch.  371;  Evers  v.  Challis,  7  H.  L.  Cas.  531;  Morton  Trust  Co. 
V.  Sands,  195  N.  Y.  28,  36;  N.  Y.  Life  Ins.  &  T.  Co.  v.  Cary,  191  N.  Y.  33; 
Schey  v.  Schey,  194  N.  Y.  368;  Perkins  v.  Fisher,  59  Fed.  801;  Quinlan  v. 
Wickman,  233  111.  39.] 

1  Martelli  v.  Holloway,  L.  R.  5  H.  L.  532. 

*  Hosea  v.  Jacobs,  98  Mass.  65. 


given  to  a  son  and  on  his  death  a 
further  life  estate  to  his  widow  and 
children,  if  he  should  leave  any, 
with  remainder  to  his  children  in  fee, 
and  if  he  should  leave  a  widow  but 
no  children,  the  remainder  after  the 
widow's  life  estate  to  the  issue  of  A. 
W.,  or  failing  such  issue  to  the  testa- 
tor's right  heirs-at-law,  and  the  son 
died,  never  having  married,  A.  W. 
having  previously  died  leaving  no 
issue,  it  was  held  that  the  gift  over 
to  the  testator's  right  heirs  was  not 
too  remote,  since  the  life  estates  in 
the  widow  and  children  of  the  son 
were  expressly  made  conditional  on 
liis  dying  leaving  a  widow  and  chil- 
dren or  a  widow  alone.  These  con- 
ditions not  happening,  the  gift  over 
to  testator's  right  heirs  was  direct 
and  not  after  possible  life  estates. 
Brown  v.  Wright,  194  Mass.  540. 
In  a  similar  case,  Gray  v.  Whitte- 
more,  192  Mass.  367,  372,  it  was 
said,  "This  is  not  the  case  of  a  limi- 
tation expressed  to  be  made  upon 
one  double  contingency  or  upon  the 

620 


happening  of  two  events  which  the 
testator  has  not  separated,  but  one 
in  which  the  testator  has  himself 
made  the  distinction  and  separa- 
tion between  the  two  dflferent 
events,  either  one  of  which,  if  it 
occurs,  will  exclude  the  existence  of 
the  other.  ...  It  is  true,  no  doubt, 
that  where  the  testator  has  made 
only  one  contingency,  though  de- 
pending upon  a  twofold  event,  the 
courts  will  not  split  this  up  into  two 
contingencies,  one  good  and  the 
other  bad,  and  sustain  the  limitation 
on  the  ground  that  only  the  good 
contingency  has  taken  place."  This 
last  proposition  is  supported  by  sev- 
eral recent  decisions  of  the  English 
court.  In  re  Hancock,  [1901]  1  Ch. 
482;  In  re  Harvey,  39  Ch.  Div.  289; 
In  re  Bence,  [1891]  3  Ch.  242.  See 
Gray  on  Perpetuities  (2d  ed.), 
§  331;  In  re  Wilcox,  194  N.  Y.  288. 
(a)  But  the  period  of  time  within 
which  the  estates  must  vest  is  reck- 
oned from  the  date  of  the  testator's 
death. 


CHAP.  XIII.]       RULE    AS    TO    EQUITABLE    ESTATES.  [§  383. 

to  the  same  restrictions.'  A  perpetuity  will  no  more  be  toler- 
ated when  it  is  covered  by  a  trust,  than  when  it  displays  itself 
undisguised  in  the  settlement  of  a  legal  estate.^  "If,"  as  Lord 
Guilford  said,  "in  equity  you  could  come  nearer  to  a  perpetuity 
than  the  common  law  admits,  all  men,  being  desirous  to  con- 
tinue their  estates  in  their  families,  would  settle  their  estates 
by  way  of  trust,  which  might  make  well  for  the  jurisdiction  of 
chancery,  but  would  be  destructive  to  the  commonwealth." 

§  383.  Therefore,  the  creation  of  a  trust  or  equitable  interest, 
which  may  not  vest  in  the  object  of  the  trust  within  the  time 
limited  by  law  for  the  vesting  of  legal  estates,  will  be  nugatory.^ 
Thus  where  a  testator  devised  his  real  estate  to  trustees,  in 
trust  to  apply  the  rents  to  the  support  of  his  wife,  and  his  pres- 
ent and  future  grandchildren,  during  the  life  of  the  wife,  and  on 
her  death  to  convey  the  estates  to  all  his  present  and  future 
grandchildren,  as  they  respectively  attained  the  age  of  twenty- 
five  years,  to  hold  to  them  and  their  heirs  as  tenants  in  common, 
it  was  held  that  the  trust  to  convey  was  void,  for  the  reason  that 
some  of  the  grandchildren  might  not  become  twenty-five  years 
old  until  after  the  expiration  of  the  life  of  the  tenant  for  life, 
and  twenty-one  years  in  addition.^  So  a  testator  cannot  author- 
ize his  trustees  to  limit  an  estate  beyond  the  limits  of  the  rule 
against  perpetuities;  but  the  persons  appointed  to  take  must  be 

»  Duke  of  Norfolk's  Case,  3  Ch.  Cas.  20;  2  Ch.  R.  229;  2  Freem.  72; 
Pollexf.  293;  Massenburgh  v.  Ash,  1  Vern.  254;  Schutter  i'.  Smith,  41  N.  Y. 
329;  Knox  v.  Jones,  47  N.  Y.  397;  Burrill  v.  Boardman,  43  N.  Y.  254. 
jEquitas  sequitur  legem,  but  courts  of  equity  have  rather  led  the  law  courts 
in  fashioning  the  rules  against  perpetuities.  [  Gray  on  Perpetuities,  (2d 
ed.)  §  322  et  seq.;  PuHtzer  v.  Livingston,  89  Me.  359.] 

*  Norfolk's  Case,  1  Vern.  164;  Humberston  v.  Humberston,  1  P.  Wms. 
332;  Parfitt  v.  Hember,  L.  R.  4  Eq.  443;  Sears  v.  Putnam,  102  Mass.  5; 
Lovering  v.  Worthington,  106  Mass.  86. 

»  Bailey  v.  Bailey,  28  Hun,  603.  [Andrews  i'.  Lincoln,  95  Me.  541; 
Towle  V.  Doe,  97  Me.  427.] 

*  Blagrave  v.  Hancock,  16  Sim.  374;  Dodd  v.  Wake,  S  Sim.  615;  Brouph- 
ton  V.  James,  1  Coll.  26;  2  H.  L.  Cas.  406;  Walker  v.  Mower,  16  Beav.  365; 
Leake  f.  Robinson,  2  Mer.  363;  Sears  v.  Russell,  8  Gray,  86. 

G21 


§383. 


PERPETUITIES    AND    ACCUMULATIONS. 


CHAP.  XIII. 


capable  of  taking  directly  under  the  will.^  (a)    So  where  a  tes- 
tator devised  land  to  a  corporation  in  trust  to  convey  the  same 

•  Marlborough  v.  Godolphin,  1  Ed.  404;  Robinson  v.  Hardcastle,  2  T. 
R.  241,  380,  781;  Fonda  v.  Fenfield,  56  Barb.  503;  Bamum  v.  Barnum, 
26  Md.  119.  But  a  power  to  change  trustees  does  not  come  within  the 
principle.    Clark  v.  Piatt,  30  Conn.  282. 


(a)  A  testator  or  grantor  cannot 
by  grant  of  a  power  accomplish  a 
disposition  of  his  property  in  the 
future  in  violation  of  the  rule  against 
perpetuities.  Except  in  the  case  of 
unlimited  powers  of  disposal  by  deed 
or  by  will,  the  validity  of  the  execu- 
tion of  the  power  as  regards  the  rule 
against  perpetuities  depends  upon 
whether  the  attempted  exercise 
would,  under  the  circumstances  ex- 
isting at  the  date  of  the  attempted 
exercise,  have  been  valid  if  made  at 
the  time  the  deed  or  will  creating  the 
power  took  effect.  Brown  v.  Colum- 
bia Finance,  etc.,  Co.,  123  Ky.  775 
Graham  v.  Whitridge,  99  Md.  248 
269;  Genet  v.  Hunt,  113  N.  Y.  158 
Dana  ;;.  Murray,  122  N.  Y.  604 
Lewine  v.  Gerardo,  112  N.  Y.  S.  192 
Farmers'  Loan  &  Tr.  Co.  v.  Kip,  192 
N.  Y.  266;  Lawrence's  Estate,  136 
Pa.  St.  354;  Boyd's  Estate,  199  Pa. 
St.  487;  Bartlett  v.  Sears,  81  Conn. 
34. 

If  the  power  is  to  appoint  by  deed 
or  will  to  whomever  the  donee 
chooses,  the  remoteness  of  appoint- 
ment is  to  be  determined  from  the 
point  of  time  of  its  exercise,  not  from 
the  time  of  its  creation.  Gray  on 
Perpetuities  (2d  ed.),  §  524;  Rous  v. 
Jackson,  29  Ch.  Div.  521;  Genet  v. 
Hunt,  113  N.  Y.  158.  But  notwith- 
standing this  exception,  the  appoin- 
tee takes  under  the  instrument  cre- 
ating the  power.  In  re  Devon's 
Settled   Estates,   [1896]  2  Ch.  562, 

622 


567;  In  re  Johnson's  Estate,  19  N. 
Y.  S.  963;  Collins  v.  Wickwire,  162 
Mass.  143;  Olney  v.  Balch,  154 
Mass.  318. 

When  the  power  is  general  in  its 
scope  but  its  exercise  is  limited  to  be 
by  will  of  the  donee,  there  is  a  differ- 
ence of  authority;  but  on  principle 
and  by  the  weight  of  authority  the 
remoteness  of  the  attempted  dispo- 
sition must  be  judged  from  the  date 
of  the  creation  of  the  power.  Gray 
on  Perpetuities  (2d  ed.),  §  526;  Law- 
rence's Estate,  136  Pa.  St.  354;  Ge- 
net V.  Hunt,  113  N.  Y.  158.  See 
contra,  Rous  v.  Jackson,  29  Ch.  521. 

A  power  is  not  void  because  under 
it  the  donee  "might,  without  depart- 
ing from  the  express  language,  at- 
tempt to  create  an  illegal  estate. 
The  power  is  in  legal  effect  to  do 
what  is  lawful  and  not  what  is  un- 
lawful." Hillen  v.  Iselin,  144  N.  Y. 
365,  378;  Graham  v.  WTiitridge,  99 
Md.  248,  269;  Brown  v.  Columbia 
Finance,  etc.,  Co.,  123  Ky.  775  (sem- 
hle);  McClellan's  Estate,  221  Pa.  St. 
261 ;  Stone  v.  Forbes,  189  Mass.  163. 
And  the  exercise  of  the  power  will 
be  upheld  so  far  as  it  is  valid,  if  the 
invalid  parts  can  be  separated  from 
the  valid.  Graham  v.  WTiitridge, 
99  Md.  248,  269;  Brown  v.  Colum- 
bia Finance,  etc.,  Co.,  123  Ky.  775 
(semble).  See  also  Lewine  v.  Ger- 
ardo, 112  N.  Y.  S.  192. 

Where  the  trust  is  to  sell  within  a 
reasonable  time  after  the  death  of 


CHAP.  XTII.]        RULE    AS   TO    EQUITABLE    ESTATES. 


(§  383. 


to  A.  for  life,  with  remainder  to  his  oldest  son  for  life,  remainder 
to  the  son's  oldest  son  for  life,  and  so  on  in  an  endless  .series, 
and  in  default  of  issue  of  A.,  then  to  B.,  for  life,  and  remainder 
to  his  oldest  son  for  life,  and  so  on  in  the  same  manner  as  to 
the  sons  of  A.,  it  was  held  to  be  void  and  vain  as  a  perpe- 
tuity.^ So  if  any  directions  are  given  which,  if  complied  with, 
must  enforce  a  perpetuity,  they  will  be  void ;  as  when  a  testa- 
tor gave  land  to  a  college,  and  directed  that  the  same  should 
be  leased  forever  to  his  wife's  relations  at  two-thirds  its 
value,  it  was  held  to  be  a  void  direction,  as  tending  to  a 
perpetuity .2  (a) 

•  Humborston  v.  Humberston,  1  P.  Wms.  332;  Parfitt  v.  Hember,  L. 
R.  4  Eq.  442;  Floyer  v.  Bankes,  L.  R.  8  Eq.  115. 
2  Att.  Gen.  v.  Greenhill,  9  Jur.  (n.  s.)  1307. 


life  beneficiaries  and  to  divide  the 
proceeds  among  persons,  some  of 
whom  were  not  in  being  at  the  time 
the  trust  was  created,  it  has  been 
held  that  the  trust  for  sale  and  divi- 
sion does  not  violate  the  rule  against 
perpetuities,  since  the  reasonable 
time,  during  which  the  sale  is  to  be 
made  and  the  trust  terminated,  can- 
not have  been  intended  to  exceed 
twenty-one  years.  In  re  Sudeley, 
[1894]  1  Ch.  334. 

(a)  Since  the  common-law  rule 
against  perpetuities  concerns  itself 
wholly  with  the  vesting,  or  begin- 
ning, of  legal  and  equitable  interests, 
not  with  their  duration,  a  provision 
that  a  trust  shall  continue  for  a  time 
which  extends  or  may  extend  beyond 
the  limits  allowed  for  the  vesting  of 
estates  does  not  affect  the  validity  of 
the  trust  if  equitable  interests  cover- 
ing the  entire  ownership  of  the  prop- 
erty must  fully  vest  within  the 
proper  time.  Lembeck  v.  Lembeck, 
73  N.  J.  Eq.  427;  Armstrongs.  Bar- 
ber, 239  111.  389.    See  In  re  Daveron, 


[1893]  3  Ch.  421;  In  re  Bevan's 
Trusts,  34  Ch.  Div.  716.  Thus  the 
common  form  of  trust  for  the  hold- 
ing and  management  of  real  estate 
for  unincorporated  associations,  the 
members  of  which  are  the  equitable 
owners  of  the  propert}^,  does  not  tend 
to  violate  the  rule  against  perpetui- 
ties from  the  fact  that  the  duration 
of  the  trust  is  not  limited  on  lives  in 
being  and  twenty-one  years,  since 
the  entire  equitable  ownership  is 
vested  in  the  members  of  the  asso- 
ciation from  the  beginning.  Hart 
V.  Seymour,  147  111.  598;  Pulitzer  v. 
Livingston,  89  Me.  359;  Howe  v. 
Morse,  174  Mass.  491;  Loomer  v. 
Loomer,  76  Conn.  522;  see  Holmes 
V.  Walter,  118  Wis.  409.  Attempted 
restraints  upon  the  power  of  the 
equitable  owners  to  alienate  their 
interests  may  be  void,  but  this  is 
under  an  entirely  different  rule.  See 
Howe  V.  Morse,  174  Mass.  491,  ex- 
plaining Winsor  v.  Mills,  157  Mass. 
362;  Butterfield  v.  Reed,  160  Mass. 
361,  368.     As  to  the  effect  of  such 

623 


§  384]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  384.  In  private  trusts  the  beneficial  interest  is  vested  abso- 
lutely in  some  individual  or  individuals  who  are,  or  within  a 
certain  time  may  be,  definitely  ascertained;  and  to  whom,  there- 
fore, collectively,  unless  under  some  disability,  it  is,  or  within 
the  allowed  limit  will  be,  competent  to  control,  modify,  or  end 
the  trust.  Private  trusts  of  this  kind  cannot  be  extended  beyond 
the  legal  limitations  of  a  perpetuity,  as  before  stated,  (a)  Nor 
can  a  settlor  give  his  trustees  a  power  to  appoint  the  property 
subject  to  a  trust,  to  new  trusts  to  arise  at  or  upon  the  termi- 
nation of  the  trusts  created  by  himself.  But  a  trust  created  for 
charitable  or  public  purposes  is  not  subject  to  similar  limita- 
tions, but  it  may  continue  for  a  permanent  or  indefinite  time.^  (6) 


1  Christ's  Hospital  v.  Granger,  1  Mac.  &  G.  460;  Att.  Gen.  v.  Foster, 
10  Ves.  344;  Att.  Gen.  v.  Newcombe,  14  Ves.  1;  Fearon  v.  Webb.  id.  19; 
Walker  v.  Richardson,  2  M.  &  W.  892;  Att.  Gen.  v.  Aspinal,  2  Myl.  &  Cr.  622; 
Att.  Gen.  v.  Heelis,  2  S.  &  S.  76;  Att.  Gen.  v.  Shrewsbury,  6  Beav.  224; 
Odell  V.  Odell,  10  Allen,  1;  Gass  v.  Wilhite,  2  Dana,  183;  Griffin  v.  Graham, 
1  Hawks,  131;  Miller  v.  Chittenden,  2  Iowa,  362;  Philadelphia  v.  Girard, 
45  Penn.  St.  26;  Yard's  App.,  64  id.  95.  The  rule  is  held  differently  under 
the  legislation  of  the  State  of  New  York.  Levy  v.  Levy,  33  N.  Y.  130; 
Bascombe  v.  Albertson,  34  N.  Y.  598;  Beekman  v.  Bonsor,  23  N.  Y.  308; 
Yard's  App.,  64  Penn.  St.  95,  and  see  White  v.  Hale,  2  Cold.  77. 


restraints  in  New  York  and  in  other  3  Ch.  252;  In  re  Swain,  [1905]  1  Ch. 

States  which  have  provided  a  stat-  669;  First  Universalist  Soc.  v.  Bo- 

utory  substitute  for  the  rule  against  land,  155  Mass.  171;  In  re  Clarke, 

perpetuities,  see   infra,   §   391    and  [1901]  2  Ch.   110;  St.  John  v.  An- 

note  a,  p.  640.  drews  Inst.,  191  N.  Y.  254;  Asylum 

(a)  See  note  (a)  supra,  p.  623.  v.  Lefebre,  69  N.  H.  238. 

(6)  The  rule  against  perpetuities  And  the  rule  applies  to  a  gift  to  a 

"does  not  apply  to  a  gift  to  a  char-  charity  limited  over  after  a  gift  to 

ity,  with  no  intervening  gift  to  or  for  an  individual,  if  the  limitation  is  not 

the  benefit  of  a  private  person  or  to  take  effect  within  the  time  al- 

corporation;  or  to  a  contingent  limi-  lowed  by  the  rule.     In  re  Bowen, 

tation  over  from  one  charity  to  an-  [1893]  2  Ch.  491;  Brooks  v.  Belfast, 

other.    But  it  does  apply  to  a  grant  90    Me.    318,  323;    Merrill    v.   Am. 

or  devise  to  a  private  person,  al-  Baptist  Union,  73  N.  H.  414;  In  re 

though  limited  over  after  an  imme-  Swain,  [1905]  1  Ch.  669;  Merritt  v. 

diate  gift  to  a  charity."    Mr.  Justice  Bucknam,  77  Me.  253.     See  infra. 

Gray,  in  Hopkins  v.  Grimshaw,  165  §  736. 
"U.  S.  342,  355.  See  In  re  Tyler,  [1891] 

624 


CHAP.  XIII.]  RESTRAINTS    UPON    AUENATION.  [§  380. 

§  385.  A  trust  to  raise  a  sum  of  money  out  of  an  estate  will 
be  good  if  properly  limited,  although  the  trust  itself  upon  which 
the  money  is  limited  after  it  is  raised  is  void  as  being  too  remote. 
In  such  case,  the  heir  will  take  the  money  as  personal  estate.' 
Contingent  remainders  of  trust  estates  do  not  follow  the  strict 
rules  of  legal  estates,  but  they  are  made  to  wait  upon  the  con- 
tingency. In  legal  estates,  the  contingency  must  happen  before 
the  time,  or  the  estate  is  gone.  In  the  contingent  remainders  of 
equitable  estates  here  spoken  of,  if  the  contingency  may  happen 
within  the  time,  the  estate  is  made  to  wait:  if  it  happens,  the 
estate  vests;  if  it  does  not  happen,  the  estate  fails.^ 

§  386.  A  legal  estate  in  fee  cannot  be  conveyed  to  a  person 
with  a  provision  that  it  shall  not  be  alienated,  or  that  it  shall 
not  be  subject  to  the  claims  of  creditors;  (a)  and  so  trusts  can- 
not in  general  ^  be  created  with  a  proviso,  that  the  equitable 

1  Ellis  V.  Lynch,  8  Bosw.  465;  Burnly  v.  Evelyn,  16  Sim.  290;  Tregon- 
well  V.  Sydenham,  3  Dow.  194.    But  see  Parson  v.  Snook,  40  Barb.  144. 

'  Mogg  V.  Mogg,  1  Mer.  654;  Monypenny  v.  Deering,  7  Hare,  568; 
Alexander  v.  Alexander,  16  C.  B.  59;  Hopkins  v.  Hopkins,  1  Atk.  581; 
Festing  v.  Allen,  12  M.  &  W.  279;  Sayer's  Trusts,  L.  R.  6  Eq'.  319;  Litt 
V.  Randall,  3  Sm.  &  G.  83;  Hodson  v.  Ball,  14  Sim.  558;  Jee  v.  Audley,  1 
Cox,  324;  Church  in  Brattle  Square  v.  Grant,  3  Gray,  142;  Arnold  v.  Con- 
greve,  1  R.  &  M.  209;  Wilson  v.  Wilson,  4  Jur.  (n.  s.)  1076;  28  L.  J.  (n.  s.) 
95;  Storrs  v.  Benbow,  3  De  G.,  M.  &  G.  390;  Cattlin  v.  Brow-n,  11  Hare, 
372;  Griffith  v.  Pownall,  13  Sim.  393;  MerUn  v.  Blagrave,  25  Beav.  125; 
Greenwood  v.  Roberts,  15  Beav.  92;  Dungannon  r.  Smith,  12  CI.  &  Fin. 
546;  Seaman  v.  Wood,  22  Beav.  591;  Vanderplank  v.  King,  3  Hare,  1; 
Webster  v.  Boddington,  26  Beav.  128;  Curtis  v.  Lukin,  5  Beav.  147;  Harden- 
burg  V.  Blair,  30  N.  J.  Eq.  42;  Newark  Meth.  Episc.  Ch.  v.  Clark,  41  Mich. 
730. 

•  This  is  the  rule  in  England  and  in  some  of  our  States;  but  the  con- 
trary is  strongly  held  in  a  Massachusetts  case  of  the  year  1882.  See 
§  827  a. 


(a)  In  re  Rossher,  26  Ch.  Div.  App.  Div.  482;  Clark  v.  Clark,  99 

801;  Pritchard  v.  Bailey,  113  N.  C.  Md.  356;  Female  Orphan  Soc.  «^  Y. 

521;  Murray  v.  Green,  64  Cal.  363;  M.  C.  A.,  119  La.  278;  Loosing  v. 

Prey  v.  Stanley,  110  Cal.  423;  Book-  Loosing,  122  N.  W.  707  (Neb.  1909). 
er  V.  Booker,  104  N.  Y.  S.  21,  119 

VOL.  I.  — 40  G25 


§  386.] 


PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 


estate,  or  interest  of  the  cestui  que  trust,  shall  not  be  alienated  or 
charged  with  his  debts.^  (a)  If  it  is  ascertained  that  an  interest 
is  vested  in  the  cestui  que  trust,  the  mode  in  which  or  the  time 
when  he  is  to  reap  the  benefit  is  immaterial.  The  law  does  not 
allow  property,  whether  legal  or  equitable,  to  be  fettered  by 

1  Snowdon  v.  Dales,  6  Sim.  524;  Green  v.  Spicer,  1  R.  &  M.  395;  Graves 
V.  Dolphin,  1  Sim.  66;  Brandon  v.  Robinson,  18  Ves.  429;  Ware  v.  Cann, 
10  B.  &  Cr.  433;  Bradley  v.  Peixoto,  3  Ves.  324;  Hood  v.  Oglander,  34  Beav. 
513;  Bird  v.  Johnson,  18  Jur.  976;  Blackstone  Bank  v.  Davis,  21  Pick.  43; 
Etches  V.  Etches,  3  Drew.  441;  Sparhawk  v.  Cloon,  125  Mass.  262;  Daniels 
V.  Eldredge,  id.  350. 


(a)  Restraints  upon  alienation  of 
future  income  have  been  treated  in 
many  States  as  not  necessarily  in- 
consistent with  the  estate  or  inter- 
est granted  to  the  beneficiary.  (See 
infra,  §  386  a  and  notes.)  But  re- 
straints upon  alienation  of  an  equi- 
table interest  in  the  corpus  of  the 
estates  are  generally  held  to  be  void 
for  repugnancy,  except  where  the 
trust  is  for  the  separate  use  of  a 
married  woman.  Winsor  v.  Mills, 
157  Mass.  362;  Gushing  v.  Spalding, 
164  Mass.  287;  Potter  v.  Couch,  141 
U.  S.  296;  Seymour  v.  McAvoy,  121 
Cal.  438;  Johnson  v.  Preston,  226  111. 
447;  Kessner  y.  Phillips,  189  Mo.  515; 
In  re  Dugdale,  38  Ch.  Div.  176.  In 
Potter  V.  Couch,  141  U.  S.  296,  315, 
the  court  said,  citing  many  authori- 
ties: "The  right  of  alienation  is 
an  inherent  and  inseparable  quality 
of  an  estate  in  fee  simple.  In  a  de- 
vise of  land  in  fee  simple,  there- 
fore, a  condition  against  all  aliena- 
tion is  void,  because  repugnant  to 
the  estate  devised.  For  the  same 
reason,  a  limitation  over,  in  case  the 
first  devisee  shall  alien,  is  equally 
void,  whether  the  estate  be  legal  or 
equitable.  And  on  principle,  and 
according  to  the  weight  of  author- 

626 


ity,  a  restriction,  whether  by  way  of 
condition  or  of  devise  over,  not  for- 
bidding alienation  to  particular  per- 
sons or  for  particular  purposes  only, 
but  against  any  and  all  alienation 
whatever  during  a  hmited  time,  of 
an  estate  in  fee,  is  likewise  void,  as 
repugnant  to  the  estate  devised  to 
the  first  taker,  by  depriving  him  dur- 
ing that  time  of  the  inherent  power 
of  alienation." 

Attempted  restraints  upon  alien- 
ation of  absolute  legal  life  estates 
and  vested  remainders  are  also  void. 
Wool  V.  Fleetwood,  136  N.  C.  460, 
67  L.  R.  A.  444;  Streit  v.  Fay,  230 
111.  319.  But  it  is  an  established 
rule  in  Kentucky  that  a  will  or  deed 
creating  an  absolute  estate  may  im- 
pose valid  restraints  upon  aliena- 
tion for  a  "reasonable"  time.  Law- 
son  V.  Lightfoot,  84  S.  W.  739 
(Ky.  1905);  Kean  v.  Kean,  18  S.  W. 
1032,  19  S.  W.  184  (Ky.);  Morton's 
Guardian  v.  Morton,  120  Ky.  251; 
Stewart  v.  Brady,  3  Bush,  623;  Smith 
V.  Isaacs,  78  S.  W.  434  (Ky.  1904). 

A  restraint  upon  power  of  alien- 
ation is  not  inconsistent  with  a  legal 
title  held  in  trust  for  others.  Dan- 
forth  V.  Oshkosh,  119  Wis.  262,  275. 
See  Asylum  v.  Lefebre,  69  N.  H.  238. 


CHAP.  XIII.]  RESTRAINTS    UPON    ALIENATION.  [§  386. 

restraints  upon  alienation.  Therefore,  when  an  equitable  inter- 
est is  once  vested  in  the  cestui  que  trust,  he  may  dispose  of  it,  or 
it  may  pass  to  his  assignees  by  operation  of  law,  if  he  becomes  a 
bankrupt,  (a)  Thus  a  trust  for  a  person's  support,*  or  to  pay 
the  interest  to  a  person  for  life,  as  the  trustees  may  think 
proper,^  or  when  it  shall  become  payable,^  or  in  such  sums  or 
portions,  and  at  such  times  and  in  such  manner  as  the  trustees 
think  best,''  may  be  exercised  according  to  the  discretion  of  the 
trustees;  but  the  bankruptcy  of  the  cestui  que  trust  puts  an  end 
to  the  discretion  of  the  trustees,  and  vests  the  whole  interest  in 
the  assignees;  and  this  is  so,  even  where  the  trustees  were  di- 
rected to  pay  as  they  should  think  proper,  and  at  their  will  and 
pleasure  and  not  otherwise,  so  that  the  cestui  que  trust  should 
have  no  right,  claim,  or  demand,  other  than  the  trustees  should 
think  proper.  The  court  thought,  in  Snowdon  v.  Dales,  that, 
taking  the  whole  instrument  together,  the  cestui  que  trust  had  a 
vested  interest,  that  these  directions  applied  only  to  the  manner 
of  enjoyment,  and  that  the  equitable  interest  vested  in  the 
assignees  at  his  bankruptcy.^  The  test  is.  Would  executors  of 
the  cestui  que  trust  have  a  right  to  call  for  any  arrears?  if  so, 
the  assignees  would  have  the  right  to  call  for  the  future  income 
or  interest.^  (6) 

1  Younghusband   v.   Gisbome,    1    Coll.   400. 

2  Green  v.  Spicer,  1  R.  &  M.  395. 
'  Graves  v.   Dolphin,    1   Sim.  66. 

«  Piercy    v.    Roberts,    1    Myl.    &    K.    4. 

'  Snowdon  v.   Dales,  6  Sim.  524. 

•  Re  Sanderson's  Trust,  3  K.  &  J.  497. 

(a)  See  Riordan  v.  Schlicher,  146  must  be  qualified  by  the  established 
Ala.  615;  McCrea  v.  Yule,  68  N.  J.  rule  in  many  States,  that  valid  re- 
Law,  465;  Binns  t'.  La  Forge,  191  111.  straints  may  be  imposed  upon  a  ces- 
598;  Jastram  v.  McAuslan,  26  R.  I.  <(/i's  power  of  anticipating  income  or 
320;  Bronson  v.  Thompson,  77  Conn,  of  alienating  it  before  it  is  due.  See 
214;  Wenzel  v.  Powder,  100  Md.  36;  infra,  §  386  a  and  notes,  and  §  S27  a. 
Whittredge  v.  Sweetzer,  189  Mass.  (b)  A  wide  discretion  given  to  the 
45.  This  statement,  although  gen-  trustee  as  to  the  time,  and  manner 
erally  true  in  the  absence  of  restraint  of  payment  of  income  does  not  neces- 
imposed  by  the  creator  of  the  trust,  sarily  make  the  income  inalienable, 

('.27 


§  386  a.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  386  a.  This  doctrine,  that  the  incidents  of  a  legal  title 
attach  to  an  absolute  equitable  interest,  and  that  an  equitable 
estate  for  life  in  any  other  than  a  married  woman  carries  with 
it  the  power  of  alienation  by  the  cestui  que  trust,  and  may  be 
taken  for  the  payment  of  his  debts,  and  that  no  provision  which 
does  not  operate  to  terminate  his  interest  can  protect  it  from 
the  claims  of  creditors,  is  the  well-settled  law  of  England,  and 
has  been  approved  and  applied  in  many  dicta  and  decisions  in 
the  United  States.^  But  it  has  not  been  allowed  to  pass  unchal- 
lenged, and  there  is  eminent  authority  in  the  Federal  and  the 
State  courts  for  the  proposition,  that  the  power  of  alienation  is 
not  a  necessary  incident  to  an  equitable  estate  for  life,  and  that 
the  owner  of  property  may,  in  the  free  exercise  of  his  bounty,  so 
dispose  of  it  as  to  secure  its  enjoyment  to  the  objects  of  his 
bounty  without  making  it  alienable  by  them  or  liable  for  their 
debts,  and  that  this  intention,  clearly  expressed  by  the  founder 
of  a  trust,  must  be  carried  out  by  the  courts.^  (a)     In  those 

1  Ante,  §  386,  cases  cited;  Tillinghast  v.  Bradford,  5  R.  I.  205;  Smith 
V.  Moore,  37  Ala.  327;  Hallett  v.  Thompson,  5  Paige,  583;  Bramhall  v. 
Ferris,  14  N.  Y.  41,  44;  WilUams  v.  Thorn,  70  N.  Y.  270;  Nichols  v.  Levy, 

5  Wall.  433,  441;  SeUick  v.  Mason,  2  Barb.  Ch.  79;  McIUvaine  v.  Smith, 
42  Mo.  45;  Heath  v.  Bishop,  4  Rich.  Eq.  46;  Rider  v.  Mason,  4  Sandf.  Ch. 
352;  Easterly  v.  Keney,  36  Conn.  18;  Nickell  v.  Handley,  10  Grat.  336; 
Girard  Life  Ins.  Co.  v.  Chambers,  46  Pa.  St.  485;  Dick  v.  Pitchford,  1  Dev. 

6  B.  Eq.  480;  Mebane  ;;.  Mebane,  4  Ired.  Eq.  131;  Pace  v.  Pace,  7  N.  C. 
119.  And  a  trust  made  void  by  an  illegal  suspension  of  the  power  of 
alienation  is  not  made  valid  by  a  power  of  sale  in  the  trustee,  the  proceeds 
remaining  subject  to  the  trust.  Garvey  v.  McDavitt,  11  Hun  (N.  Y.),  457; 
Brewer  v.  Brewer,  id.  147;  but  see  Braman  v.  Stiles,  4  Pick.  460. 

'^  Nichols  V.  Eaton,  91  U.  S.  716;  cited  and  approved  in  Hyde  v.  Woods, 
94  U.  S.  523;  Ashhurst  v.  Given,  5  Watts  &  S.  323;  Holdship  v.  Patterson, 

7  Watts,  547;  Brown  v.  Williamson,  36  Penn.  St.  338;  Still  v.  Spear,  45 
id.  168;  Shankland's  App.,  47  id.  113;  Pope  v.  Elliott,  8  B.  Mon.  56;  White 
V.  White,  30  Vt.  338;  Campbell  v.  Foster,  35  N.  Y.  361.  The  argument  in 
these  cases  proceeds  upon  the  ground,  that  the  doctrine  of  the  English 
cases  must  rest  upon  the  rights  of  creditors;  and  it  is  claimed  that  the 

since  this  discretion  must  be  exer-      come.  Endicott «;.  University  of  Va., 

cised  reasonably  and  does  not  give      182  Mass.  156. 

the  trustee  power  to  withhold  all  in-  (o)  The  doctrine  of  the  EngUsh 

628 


CHAP.  XIII,]  RESTRAINTS    UPON    ALIENATION.  [§  386  a. 

States,  however,  where  the  doctrine  of  the  English  cases  has 
been  adopted,  these  distinctions  and  observations  must  be  borne 

policy  of  the  States  of  this  Union  has  not  been  carried  so  far  in  further- 
ance of  creditors'  rights,  that  creditors  can  have  no  claim  upon  property 
which  belonged  to  the  founder  of  the  trust,  and  of  which  he  hari  the  full 
and  entire  right  of  disposing  as  he  chose,  for  the  benefit  of  the  cestui  que 
trust,  who  parts  with  nothing  in  return,  and  that  the  intent  of  the  donor 
clearly  expressed  in  disposing  of  his  property  for  a  lawful  purpose  must  be 
carried  out;  and  the  laws  enacted  in  nearly  or  quite  every  State,  exempting 
property  of  greater  or  less  amounts  in  value  from  liability  for  the  payment 
of  debts,  are  relied  on  as  showing  the  poUcy  of  these  States.  It  is  con- 
ceded that  there  are,  however,  limitations,  which  public  policy  or  general 
statutes  impose  upon  dispositions  of  property,  such  as  those  designed  to 
prevent  perpetuities  and  accumulations  in  corporations,  &c.  But  the 
owner  of  property  is  governed  by  the  rules  of  law,  both  in  the  use  and 
enjoyment  and  in  disposing  of  his  property;  and  the  doctrine  in  question 
seems  to  be  founded  upon  the  rule  that  title  to  property  includes  the  right 
of  alienation  and  liability  for  debts,  and  it  seems  impossible  that  there  can 
be  any  reason  in  public  policy,  under  a  free  government,  having  for  its 
object  the  growth  and  development  of  a  commercial  people,  for  such  a 
limitation  of  the  incidents  of  title  to  property,  and  the  argument  from  the 
exemption  laws  would  seem  to  be  well  answered  by  the  maxim,  expressio 
tmius  est  exclusio  altcrius.  Many  of  the  American  cases,  where  the  English 
doctrine  has  been  doubted  or  denied,  seem  to  have  been  cases  of  trusts 
for  the  support  and  maintenance  of  the  cestui  que  trust;  and  a  cloarlj-  mani- 
fested intention  on  the  part  of  the  donor  that  the  income  of  the  fund  shall 
be  devoted  to  that  purpose  may  impose  a  duty  and  give  a  consequent  power 
in  the  trustee,  either  in  his  discretion  or  under  the  direction  of  the  court, 
to  pay  over  the  income  only  in  such  manner  as  shall  insure  its  application 
in  accordance  wath  the  intent  of  the  donor  and  protect  it  from  the  claims 
of  creditors  and  the  improvidence  of  the  beneficiary,  with  substantial!}' 
the  same  result  upon  the  absolute  character  of  the  estate  of  the  cestui 
que  trust  as  if  the  instrument  declaring  the  trust  had  expresslj'  provided 
that  the  payments  should  be  made  at  the  discretion  of  the  trustee,  —  a 
result  more  in  accordance  with  the  rules  of  interpretation  than  a  strict 
adherence  to  a  definition  to  the  extent  of  defeating  the  accomplishment 
of  the  benefit  intended  by  the  donor. 

court,  that  restraints    upon   antici-  Kentucky,  Rhode  Island,  Virginia, 

pation  of  income  of  trust  property  and  North  Carolina.    In  re  Fitzger- 

are  invalid  because  inconsistent  with  aid,  [1903]  1  Ch.  933;  Robertson  v. 

the  absolute  right  to  the  income,  ex-  Johnston,    36    Ala.    197;    Jones    r. 

cept  where  the  beneficiary  is  a  mar-  Reese,  65  Ala.  134;  Gray  v.  Obear, 

ried  woman,  has  been  adopted  by  54  Ga.  231;  Bland's  Adm'r  r.  Bland, 

the   courts    of    Alabama,    Georgia,  90  Ky.  400;  Cecil's  Trustee  v.  Rob- 

629 


§  386  a.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

in  mind.    If  the  absolute  equitable  interest  is  in  the  cestui  que 
trust,  it  goes  to  his  assignees  or  creditors  in  case  of  insolvency. 


ertson,  105  S.  W.  926  (Ky.  1907); 
Ratliff's  Ex'rs  v.  Commonwealth, 
101  S.  W.  978  (Ky.  1907);  Hubbard 
V.  Hayes,  98  S.  W.  1034  (Ky.  1907); 
Hutcliinson  v.  Maxwell,  100  Va.  169; 
Honaker  Sons  v.  Duff,  101  Va.  675; 
Young  V.  Easley,  94  Va.  193;  Pace  v. 
Pace,  73  N.  C.  119  (modified  by  N. 
C.  Code,  (1905)  §  1588).  See  also  to 
a  similar  effect  Conn.  Gen.  Stat. 
(1902),  §§  837-840;  Holmes  v.  Bush- 
nell,  80  Conn.  233;  Honnett  v.  Wil- 
liams, 66  Ark.  148,  153  (dictum). 
The  increasing  weight  of  author- 
ity in  America  favors  the  rule  that 
provisions  against  alienation  or  an- 
ticipation of  income  to  which  a  ben- 
eficiary is  absolutely  entitled  are  not 
inconsistent  with  any  estate  granted 
to  him  and  not  against  the  policy  of 
the  law.  Provisions  against  antici- 
pation or  alienation  of  income  not 
due  and  payable  or  against  liability 
to  claims  of  creditors  of  the  bene- 
ficiary have  been  held  valid  in  the 
following  States :  California :  —  Sey- 
mour V.  McAvoy,  121  Cal.  438. 
Maine:  —  Roberts  v.  Stevens,  84  Me. 
325;  Tilton  v.  Davidson,  98  Me.  55, 
58.  Maryland:  —  Smith  v.  Towers, 
69  Md.  77;  Brown  v.  Macgill,  87  Md. 
161;  Jackson  Sq.  Ass'n  v.  Bartlett, 
95  Md.  661.  Massachusetts:  — 
Munroe  v.  Dewey,  176  Mass.  184; 
Huntress  v.  Allen,  195  Mass.  227; 
Slattery  v.  Wason,  151  Mass.  266; 
Nickerson  v.  Van  Horn,  181  Mass. 
562.  Mississippi:  —  Leigh  v.  Harri- 
son, 69  Miss.  923.  Missouri:  — 
Lamport  v.  Haydel,  96  Mo.  439; 
Kessner  v.  Phillips,  189  Mo.  515. 
Pennsylvania :  —  Seitzinger's  Estate, 
170  Pa.  St.  500,  514;  Board  of  Char- 

630 


ities  V.  Lockard,  198  Pa.  St.  572. 
Tennessee:  —  Jourolman  v.  Massen- 
gill,  86  Tenn.  84,  100.  Texas:  —  Pat- 
ten V.  Herring,  9  Tex.  Civ.  App.  640; 
McCleUand  v.  McClelland,  37  S.  W. 
350  (Tex.  Civ.  App.  1896) ;  Wood  v. 
McClelland,  53  S.  W.  381  (Tex.  Civ. 
App.  1899);  Monday  v.  Vance,  92 
Tex.  428  (semble).  Vermont:  — 
Barnes  v.  Dow,  59  Vt.  530.  West 
Virginia :  —  Guernsey  v.  Lazear,  51 
W.  Va.  328;  Talley  v.  Ferguson,  64 
W.  Va.  328.  For  dicta  to  the  same 
effect  in  Illinois  and  Iowa,  see  Steib 
V.  Whitehead,  111  111.  247;  Bennett w. 
Bennett,  217  111.  434;  King  v.  King, 
168  111.  273;  Olsen  v.  Youngerman, 
136  Iowa,  404;  Meek  v.  Briggs,  87 
Iowa,  610.  See  also  Hackley  v.  Lit- 
tell,  150  Mich.  106;  Castree  v.  Shot- 
well,  73  N.  J.  Eq.  590.  None  of 
these  States  goes  to  the  extent  of 
holding  that  a  cestui' s  interest  in  the 
corpus  of  trust  property,  if  he  has  an 
interest,  can  be  made  inalienable, 
except  in  case  of  married  women. 
The  American  doctrine  rests  upon 
the  ground  that  a  right  to  receive 
income  of  a  trust  fund  is  not  neces- 
sarily an  interest  in  the  fund  itself. 
The  limitations  upon  the  American 
doctrine  are  stated  as  follows  in 
Kessner  v.  PhilUps,  189  Mo.  515, 
524:  "In  order  to  have  a  spend- 
thrift trust  certain  prerequisites 
must  be  observed:  first,  the  gift  to 
the  donee  must  be  only  of  the  in- 
come. He  must  take  no  estate  what- 
ever, have  nothing  to  alienate,  have 
no  right  to  possession,  have  no  ben- 
eficial interest  in  the  land,  but  only 
a  qualified  right  to  support,  and  an 
equitable  interest  only  in  the  income; 


CHAP.  xiir. 


RESTRAINTS    UPON    ALIENATION. 


[§386a. 


And  it  may  be  said  that,  if  an  absolute  equitable  interest  is  given 
to  a  cestui  que  trust ;  no  restraints  upon  alienation  can  be  im- 


second,  the  legal  title  must  be  vested 
in  a  trustee;  third,  the  trust  must  be 
an  active  one,  not  a  mere  dry  trust 
which  may  be  executed  under  the 
statute  of  uses." 

There  are  statute  provisions  in 
several  States  authorizing  such  re- 
straints by  the  creator  of  the  trust. 
Cal.  Civ.  Code,  §  867;  Blackburn  t;. 
Webb,  133  Cal.  420;  No.  Dak.  Codes, 
(1905)  §  4834;  So.  Dak.  Code,  (1908) 
§  315.  No.  Car.  Code,  (1905)  §  1588 
(applying  to  income  not  exceeding 
$500  per  year  payable  to  a  relative 
of  the  trustor).  See  also  Ga.  Code, 
(1895)  §  3149,  as  interpreted  by 
Sinnott  v.  Moore,  113  Ga.  90S; 
Moore  v.  Sinnott,  117  Ga.  1010.  See 
Ariz.  Stat.,  (1901)  §  4232.  Some 
States  have  statutes  which  provide 
that  a  person  beneficially  interested 
in  the  income  of  property  held  in 
trust  cannot  assign  his  right  to  fu- 
ture income  unless  the  trust  instru- 
ment provides  that  he  shall  have  the 
right.  N.  Y.  Real  Property  Law, 
(1909)  §  103,  Consol.  Laws  (1909), 
p.  3392;  Personal  Property  Law 
(1909),  §  15,  ibid.  p.  2844;  Matter  of 
Kirby,  100  N.  Y.  S.  1-55,  113  App. 
Div.  705;  Stringer  v.  Barker,  9G  N. 
Y.  S.  1052,  110  App.  Div.  37,  Berg- 
mann  v.  Lord,  194  N.  Y.  70;  Kan. 
Gen.  Stat.  (1909),  §  9697;  Minn.  R. 
L.  (1905),  §  3257;  Wis.  Stat.  (1S9S), 
§  2089;  Bums'  Ind.  Stat.  (1908), 
§  4015;  Caldwell  v.  Boyd,  109  Ind. 
447;  Mont.  Civ.  Code  (1907),  §4547. 

In  several  States  statutes  have 
been  interpreted  to  exclude  creditors 
of  a  beneficiary  from  reaching  in- 
come of  a  trust  fund  when  the  trust 
"has  been  created,  or  the  fund  so 


held  in  trust  has  proceeded  from 
some  person  other  than  the  debtor." 
N.  Y.  Code,  §  1879;  Everett  v.  Pey- 
ton, 167  N.  Y.  117;  Keeney  v.  Morse, 
75  N.  Y.  S.  728,  71  App.  Div.  104; 
see  Ullman  v.  Cameron,  92  App.  Div. 
(N.  Y.),  91;  Kurd's  III.  Rev.  Stat. 
(1908)  c.  22,  §  49;  Binns  t;.  La  Forge, 
191  111.  598;  Mich.  Comp.  Laws 
(1897),  §436;N.  J.  Gen.  Stat.  (1895), 
p.  390,  §  91;  Stout  v.  Apgar,  69  N.  J. 
Eq.  337;  Linn  v.  Davis,  58  N.  J. 
Law,  29;  Castree  v.  Shotwell,  73  N. 
J.  Eq.  590.  In  Illinois  and  New  Jer- 
sey the  statutes  have  been  inter- 
preted to  exclude  creditors  from  the 
cestui  s  interest  in  the  corpus.  See 
supra. 

In  States  where  there  are  such 
statutes,  it  is  frequently  provided 
that  in  case  of  a  trust  to  receive 
income  with  no  valid  direction  for 
accumulation,  the  surplus  of  in- 
come over  what  is  necessary  for  the 
support  and  education  of  the  bene- 
ficiary shall  be  liable  to  the  claims 
of  his  creditors.  N.  Y.  Real  Prop. 
Law,  1909,  §  98,  IV  Consol.  Laws, 
1909,  p.  3391;  Wetmore  v.  Wetmore, 
149  N.  Y.  520;  Everett  v.  Peyton, 
167  N.  Y.  117;  Dittmar  v.  Gould,  69 
N.  Y.  S.  70S,  60  App.  Div.  94; 
Williams  v.  Thorn,  70  N.  Y.  270; 
Mich.  Comp.  Laws  (1S97),  §  S841; 
Spring  V.  Randall,  107  Mich.  103; 
Cal.  Civil  Code,  §  859;  Magner  t;. 
Crooks,  139  Cal.  640;  Minn.  Rev. 
Laws  (1905),  §  3251;  No.  Dak. 
Codes  (1905),  §  4826;  So.  Dak. 
Code  (1908),  §  307.  See  also  Conn. 
Gen.  Stat.  (1902).  §  839. 

In  States  which  permit  restraints 
on  alienation  of  income,  the  inten- 

631 


§  386  a.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

posed.    But  a  trust  may  be  so  created  that  no  interest  vests  in 
the  cestui  que  trust;  consequently,  such  interest  cannot  be  aUen- 


tion  of  the  creator  of  the  trust  to 
impose  such  a  restraint  need  not  be 
express,  but  may  often  be  gathered 
from  the  circumstances  and  the  na- 
ture of  the  interest  given   to  the 
beneficiary.    Barnes  v.  Dow,  69  Vt 
530;  Berry  v.  Dunham,  202  Mass 
133;  Slattery  v.  Wason,  151  Mass 
266;  Lampert  v.  Haydel,  96  Mo.  439 
Roberts  v.  Stevens,  84  Me.  325;  Til- 
ton  V.   Davidson,   98   Me.   55,   58 
Leigh   V.   Harrison,    69   Miss.   923 
Steib   t;.   Whitehead,    111    111.   247 
Bennett  i;.   Bennett,   217  111.   434 
Patten  v.  Herring,  9  Tex.  Civ.  App 
640;  Seymour  v.  McAvoy,  121  Cal 
438;  Castree  v.  Shotwell,  73  N.  J 
Eq.    590;    Talley   v.    Ferguson,    64 
W.  Va.  328;  Mattison  v.  Mattison, 
53  Or.  254.     See  Conn.  Gen.  Stat. 
(1902),  §§837-840. 

It  has  been  held  that  where  the 
sole  beneficiary  of  an  attempted 
spendthrift  trust  has  been  given,  by 
the  terms  of  the  trust,  power  to 
direct  a  disposal  of  the  principal 
fund  for  his  own  benefit  and  so  to 
bring  about  a  termination  of  the 
trust  at  will,  his  creditors  can  reach 
his  interest  in  the  trust  property, 
since  he  is  practically  the  equitable 
owner.  Morgan's  Estate,  223  Pa. 
St.  228;  Ullman  v.  Cameron,  92 
App.  Div.  (N.  Y.)  91. 

In  all  jurisdictions  restraints  on 
alienation  are  invalid  as  to  the  ces- 
tui's  creditors  when  the  trust  prop- 
erty was  his  own  before  the  settle- 
ment. Egbert  v.  De  Solms,  218 
Pa.  St.  207;  Kene  v.  Hill,  92  N.  Y. 
S.  805,  102  App.  Div.  370;  Newton 
V.  Jay,  95  N.  Y.  S.  413,  107  App. 
Div.  457;  Schenck  v.  Barnes,    156 

632 


N.  Y.  316;  Raymond  v.  Harris,  82 
N.  Y.  S.  689,  84  App.  Div.  546; 
Pacific  National  Bank  v.  Windram, 
133  Mass.  175;  Jackson  v.  Von 
Zedlitz,  136  Mass.  342.  See  Ames' 
Cases,  (2d  ed.)  p.  400;  Hackley  v. 
Littell,  150  Mich.  106.  It  has  been 
held  in  several  cases  that  the  prin- 
ciple applies  with  equal  force  where 
a  married  woman  has  attempted 
to  create  a  spendthrift  trust  for  her 
separate  use.  Brown  v.  Macgill,  87 
Md.  161 ;  Jackson  v.  Von  Zedlitz,  136 
Mass.  342;  Pacific  Nat.  Bank  «;. 
Windram,  133  Mass.  175;  Stewart  r. 
Madden,  153  Pa.  St.  445;  Ghormley 
V.  Smith,  139  Pa.  St.  584.  See  12 
Harvard  Law  Rev.  53.  Section  19 
of  the  Married  Women's  Property 
Act  of  1882  seems  to  have  provided 
for  the  same  result  in  England.  See 
Birmingham,  etc.,  Soc.  v.  Lane, 
[1904]  1  K.  B.  35. 

A  creditor  of  the  settlor  who  has 
settled  property  in  trust  for  his  own 
benefit  as  to  the  income  with  power 
of  appointment  as  to  the  principal, 
cannot  reach  the  corpus  of  the  trust 
property  in  default  of  an  appoint- 
ment, provided  of  course  the  set- 
tlement was  not  made  to  defraud 
creditors.  Crawford  v.  Langmaid, 
171  Mass.  309.  Although  the 
exercise  of  the  general  power  of 
appointment  may  make  the  corpus 
liable  for  the  payment  of  the  ap- 
pointer's  debts,  it  is  not  so  liable  in 
default  of  appointment,  and  the 
creditors  cannot  compel  its  exercise. 
Crawford  v.  Langmaid,  171  Mass. 
309.  See  also  Bailey  v.  Worster, 
103  Me.  170. 

The    validity    of    an    attempted 


tllAP.  XIII,]  RESTRAINTS    UPON    ALIENATION.  [§  38G  a. 

ated,  as  where  property  is  given  to  trustees  to  be  applied  in  their 
discretion  to  the  use  of  a  third  person,  no  interest  goes  to  the 
third  person  until  the  trustees  have  exercised  this  discretion. 
So  if  property  is  given  to  trustees  to  be  appHed  by  them  to  the 
support  of  the  cestui  que  trust  and  his  family,  or  to  be  paid  over 
to  the  cestui  que  trust  for  the  support  of  himself  and  the  educa- 
tion and  maintenance  of  his  children.  In  short,  if  a  trust  is 
created  for  a  specific  purpose,  and  is  so  limited  that  it  is  not 
repugnant  to  the  rule  against  perpetuities  and  is  in  other  respects 
legal,  neither  the  trustees,  not  the  cestui  qu£  trust,  nor  his  credi- 
tors or  assignees,  can  divest  the  property  from  the  appointed 
purposes.^  (a)     Any  conveyance,  whether  by  operation  of  law  or 

»  Rife  V.  Geyer,  59  Penn.  St.  393;  Wells  v.  McCall,  64  id.  207;  WTiite 
V.  White,  30  Vt.  342;  Clute  v.  Bool,  8  Paige,  83;  Bramhall  v.  Ferris,  14 
N.  Y.  44;  Doswell  v.  Anderson,  1  P.  &  H.  (Va.)  185;  Raikes  v.  Ward,  1  Hare, 
445;  Crockett  v.  Crockett,  id.  451;  Wetmore  v.  Truslow,  51  N.  Y.  338;  Graff 
V.  Bonnett,  31  N.  Y.  9;  Locke  v.  Mabbett,  3  Court  of  App.  Dec.  68;  Black- 
stone  Bank  v.  Davis,  21  Pick.  42;  Etches  v.  Etches,  3  Drew.  441;  Genet  v. 
Beekman,  45  Barb.  382;  Chase  v.  Chase,  2  Allen,  101;  Loring  v.  Loring, 
100  Mass.  340;  Cole  v.  Littlefield,  35  Me.  439.    Sec  ante,  §  117,  and  notes. 

restraint  on  alienation  is  to  be  the  use  of  the  cestui,  it  has  been  held 
determined  by  the  law  of  the  locality  that  the  cestui' s  interest  was  alien- 
where  the  property  has  its  situs,  able,  since  in  such  a  case  the  cestui 
Spindle  v.  Shreve,  111  U.  S.  542,  is  absolutely  entitled  to  the  whole 
In  re  Fitzgerald,  [1903]  1  Ch.  933.  income.  Huntington  v.  Jones,  72 
See  Robb  v.  Washington  &  Jefferson  Conn.  45.  But  see  Meek  v.  Briggs, 
Coll.,  185  N.  Y.  485.  The  same  is  87  Iowa,  610.  See  also  Ames'  Cases 
true  of  the  rights  and  remedies  of  on  Trusts,  (2d  ed.)  p.  405. 
creditors.  Keeney  v.  Morse,  75  A  distinction  has  been  made  be- 
N.  Y.  S.  728,  71  App.  Div.  104.  tween  the  gift  of  the  whole  or  a 
(a)  It  has  been  held  in  a  juris-  definite  part  of  the  income  of  a 
diction  which  does  not  favor  spend-  trust  fund  for  the  support  of  a  ben- 
thrift  trusts  that  a  direction  to  eficiary  and  a  mere  right  to  support 
trustees  to  "use  part  of  the  income  out  of  the  income.  In  the  former 
and  of  said  estate  as  may  be  neces-  case  it  has  been  held  that  the  bene- 
sary  to  provide  for  and  comfortably  ficiary  has  an  alienable  interest,  the 
maintain"  the  cestui,  gives  the  words  "for  support"  being  con- 
cestui  an  interest  which  his  creditors  strued  a.s  merely  stating  the  rea.son 
can  reach.  Ratliff's  Ex'rs  v.  Com-  for  the  gift  and  not  necessarily 
monwealth,  101  S.  W.  978  (Ky.  showing  an  intention  to  limit  the 
1907).  And  where  the  trustee  was  beneficiary's  power  of  alienation  or 
directed  to  "apply"  the  income  to  anticipation.      Slattery    v.    Wason, 

633 


§  386  6.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

by  the  act  of  any  of  the  parties,  which  disappoints  the  purposes 
of  the  settlor  by  divesting  the  property  or  the  income  from  the 
purposes  named,  would  be  a  breach  of  the  trust.  Therefore  it 
may  be  said,  that  the  power  to  create  a  trust  for  a  specified  pur- 
pose does,  in  some  sort,  impair  the  power  to  alienate  property. 

§  386  h.  In  the  cases  referred  to  in  the  last  section,  it  will  be 
perceived  that  the  trust  may  be  for  a  particular  purpose,  and 
that  purpose  may  not  be  exclusively  for  the  benefit  of  the 
primary  cestui  que  tru^t;  as  where  an  estate  was  vested  in  trustees 
by  a  marriage  settlement  in  trust  to  apply  the  annual  produce 
thereof  "for  the  maintenance  and  support  of  A.  B.,  his  wife  and 
children,"  it  was  held  that  the  wife  and  children  were  to  be  sup- 
ported, and  that  A.  B.  was  entitled  to  the  surplus  after  their 
support,  and  that  such  surplus  would  go  to  his  assignees  in  case 
of  his  bankruptcy :  ^  but  when  the  trustees  have  an  arbitrary 
power  of  applying  such  part  of  an  income  as  they  see  fit  to 
support  of  a  cestui  que  tru^t,  and  for  no  other  purpose,  it  was 
held  that  nothing  passed  to  his  assignees.^   And  so  if  the  trustees 

1  Page  V.  Way,  3  Beav.  20. 

2  Twopenny  v.  Peyton,  10  Sim.  487;  Re  Sanderson's  Trust,  3  K.  &  J.  497; 
Lord  V.  Bun,  2  Y.  &  C.  Ch.  98;  Holmes  v.  Penney,  3  K.  &  J.  90.  [  Weymyss 
V.  White,  159  Mass.  484;  King  v.  King,  168  111.  273;  Murphy  v.  Delano, 
95  Me.  229;  Nat.  Bank  v.  Nashville  Trust  Co.,  62  S.  W.  392  (Tenn.  Ch. 
App.  1901).  And  he  has  no  interest  which  his  creditors  can  reach.  Nicker- 
Bon  V.  Van  Horn,  181  Mass.  562;  Stone  v.  Westcott,  18  R.  I.  685;  Meek  v. 

151   Mass.  266;  Jastram  v.  McAus-  ficiary  in  the  income  is  not  a  separ- 

lan,  26  R.  I.  320.    In  a  case  of  the  able  interest  as  where  the  trustee  is 

latter  kind  it  has  been  said  that  directed  to  expend  the  income  for  the 

"when  the  right  is  given  for  a  sup-  benefit  of  a  cestui  and  his  family,  he 

port  out  of  a  fund  which  is  given  to  has  no  interest  which  his  creditors 

another,  the  right  is  in  its  nature  can  reach,  or  which  he  acting  alone 

inalienable,    and    the    intention    of  can  assign.  Brooks  t;.  Raynolds,  59 

the    donor    that    it    shall    not    be  Fed.  923.    Talley  t;.  Ferguson,  64  W. 

alienated  is  presumed."    Slattery  v.  Va.   328.     But  all  the  beneficiaries 

Wason,   151  Mass.  266.      See   also  could  unite  to  transfer  the  interest 

Barnes  v.  Dow,  59  Vt.  530;  Holmes  of  all  of  them.     See  Stern  Bros.  v. 

V.  Bushnell,  80  Conn.  233.  Hampton,  73  Miss.  555. 
Where  the  interest  of  a  bene- 
634 


CHAP.  XIII.]  RESTRAINTS   UPON   ALIENATION.  [§  388. 

are  to  apply  the  money  to  the  support  of  one  anrl  his  wife  and 
children,  nothing  tangible  can  pass  to  the  assignees;  '  but  if  the 
power  is  not  arbitrary,  but  is  imperative  on  the  trustees  to  pay 
over  the  income  for  the  support  of  the  cestui  que  trust  and  an- 
other person  or  persons,  the  assignees  are  entitled  to  take  a  part 
upon  the  insolvency  of  one,  or  the  whole  in  the  event  of  the 
death  of  the  others." 

§  387.  There  is  a  further  exception  to  the  general  rule,  that 
an  equitable  interest,  without  the  right  to  alienate,  cannot  be 
created;  and  that  is  in  the  case  of  trusts  created  for  married 
women.  It  is  not  unusual  to  create  trusts  for  married  women, 
and  give  such  women  all  the  rights  of  unmarried  women  over 
their  separate  equitable  interests,  and  at  the  same  time  to  insert 
a  clause  against  their  anticipating  the  income,  by  which  means 
they  are  unable  to  assign  or  transfer  it,  or  in  any  way  receive 
any  benefit  from  the  property,  except  by  receiving  the  income, 
as  it  becomes  due  and  payable.' 

§  388.  But  though  a  settlor  cannot  put  a  restraint  upon  alien- 
ation, or  exclude  the  rights  of  creditors,  he  may  settle  property 
upon  another  in  such  maimer  that  it  cannot  be  alienated,  and 
creditors  and  assignees  cannot  take  it.  But  in  such  case  the 
cestui  que  trust  must  lose  the  use  of  the  property  in  case  of  his 
bankruptcy.  Thus  A.  may  settle  property  upon  B.  until  alien- 
ation or  bankruptcy,  with  a  limitation  over  to  C.  upon  either 
event.  Or  A.  may  give  real  or  personal  estate  to  B.  with  a 
proviso,  that,  on  alienation  or  bankruptcy,  it  shall  shift  over  to 

Briggs,  87  Iowa,  610;  Chambers  v.  Smith,  3  A.  C.  795;  Re  Bullock,  G4  L.  T. 
736.] 

*  Godden  v.  Crowhurst,  10  Sim.  642;  Kearsley  v.  Woodcock,  3  Hare, 
185;  Wallace  v.  Anderson,  16  Beav.  533;  Hall  v.  Williams  et  al,  120  Mass. 
344. 

^  Rippon  V.  Norton,  2  Beav.  63;  Wallace  v.  Anderson,  16  Beav.  533; 
Perry  v.  Roberts,  1  Myl.  &  K.  4. 

^  Pickering  v.  Coates,  10  Phila.  65;  .\sh  v.  Bowen,  id.  96.  See  this  mat- 
ter stated  post,  chap,  on  Trusts  for  Married  Women,  §§  670,  671. 

035 


§388. 


PERPETUITIES   AND    ACCUMULATIONS. 


CHAP.  XIII. 


C.^  (a)     But  a  clause  divesting  the  property  upon  alienation 
alone,  will  embrace  only  the  voluntary  acts  of  the  party,  and 

1  Muggeridge  Trusts,  Johns.  Ch.  (Eng.)  625;  Kearsley  v.  Woodcock, 
3  Hare,  185;  Joel  v.  Mills,  3  K.  &  J.  458;  Large's  Case,  2  Leon.  82;  Churchill 
V.  Marks,  1  Coll.  441;  Sharpe  v.  Cossent,  20  Beav.  470;  Shee  v.  Hale,  13 
Ves.  404;  Lewes  v.  Lewes,  6  Sim.  304;  Cooper  v.  Wyatt,  5  Madd.  482; 
Lockyer  v.  Savage,  2  Stra.  947;  Yamold  v.  Moorhouse,  1  R.  &  M.  364; 
Stephens  v.  James,  4  Sim.  499;  Ex  parte  Oxley,  1  B.  &  B.  257;  Rochford 
V.  Hackman,  9  Hare,  475;  Ex  parte  Hinton,  14  Ves.  598;  Stanton  v.  Hall, 
2  R.  &  M.  175;  Hall  v.  Williams,  120  Mass.  344;  Nichols  v.  Eaton,  91  U.  S. 
716.  [  Olsen  v.  Youngerman,  136  Iowa,  404;  Cherbonnier  v.  Bussey,  92 
Md.  413;  Metcalfe  v.  Metcalfe,  [1891]  3  Ch.  1;  Bull  v.  Ky.  Nat.  Bank,  90 
Ky.  452,  458;  Bottom  v.  Fultz,  124  Ky.  302.  Compare  with  Bland's  Adm'r 
V.  Bland,  90  Ky.  400;  Cecil's  Trustee  i;.  Robertson,  105  S.  W.  926  (Ky.  1907).] 


(a)  The  foundation  of  the  power 
to  restrain  alienation  in  this  way 
"rests  upon  the  fact  that  there  re- 
mains or  is  vested  in  some  one  a 
valid  remainder  or  reversion,  whose 
estate  in  possession  is  contingent 
upon  some  event  which  defeats  the 
precedent  estate,  and  who  is  en- 
titled to  take  advantage  of  the  pro- 
hibited act  or  use."  Conger  v.  Lowe, 
124  Ind.  368. 

It  has  been  held  that  a  provision 
that  upon  bankruptcy  or  whenever 
the  cestui  shall  cease  to  be  entitled 
to  income  for  his  own  personal  use, 
his  absolute  right  to  it  shall  be  for- 
feited and  his  trustees  shall  there- 
after have  an  "uncontrolled  dis- 
cretion" to  apply  all  or  such  part 
of  the  income  for  his  benefit,  accu- 
mulating the  surplus  for  his  children, 
has  the  effect  of  putting  income  be- 
yond the  reach  of  the  cestui' s  trustee 
in  bankruptcy.  Re  Bullock,  64  L.  T. 
736.  In  a  trust  to  pay  income  to 
A.  during  life  "or  imtil  he  shall 
assign,  charge  or  incumber,"  it  has 
been  held  that  forfeiture  provision 
is  retroactive  in  effect  and  includes 
past  acts  creating  an  incumbrance 

C36 


unknown  to  the  creator  of  the  trust. 
West  V.  Williams,  [1898]  1  Ch.  488. 
But  where  an  equitable  fee  is 
given,  an  attempted  limitation  to 
others,  in  case  the  donee  should 
commit  or  suffer  any  act  in  conse- 
quence of  which  he  would  be  de- 
prived of  the  right  to  the  beneficial 
enjoyment  has  been  held  to  be 
void  for  repugnancy;  but  it  was 
said  that  such  a  limitation  over 
would  not  have  been  repugnant  to 
a  life  estate.  In  re  Dugdale,  38 
Ch.  Div.  176.  See  also  Thomas  v. 
Thomas,  87  L.  T.  58;  Potter  v. 
Couch,  141  U.  S.  296,  315.  In  the 
first  cited  case  it  was  said,  "The 
result  is  that  a  limitation,  by  way 
of  use  or  in  a  will,  to  A.  until  he 
attempts  to  alien,  and  on  that  event 
to  B.  and  his  heirs  is  valid,  A. 
taking  an  estate  of  freehold  which 
only  endures  by  the  terms  of  the 
limitation  until  the  attempted  alien- 
ation, and  B.  taking  a  contingent 
remainder.  But  a  limitation  to  A. 
and  his  heirs,  but  if  he  attempts  to 
alien,  to  B.  in  fee,  is  an  invalid  gift 
over.  So  also  where  the  limitation 
is    to   A.  and  'his  heirs'  until   he 


CHAP.  XIII.]  RESTRAINTS    UPON    ALIENATION.  [§  389. 

will  not  apply  to  transfers  by  operation  of  the  law,  as  by  bank- 
ruptcy/ unless  it  was  intended  that  the  clause  should  have  so 
wide  a  signification.^  Nor  will  a  power  to  confess  judgment  be  a 
voluntary  act  of  alienation,  unless  it  was  within  the  contempla- 
tion of  the  parties;^  nor  will  the  marriage  of  a  woman  be  an 
alienation  of  her  choses  in  action.^  So  if  there  is  a  clause  against 
anticipation,  an  assignment  of  arrears  already  accrued,  and 
not  of  future  income,  is  good.'^  An  assignment  in  general 
words  will  not  embrace  property  which  would  be  forfeited  by 
such  assignment." 

§  389.  If  a  testator  devises  his  real  estate  in  strict  settlement, 
and  then  gives  his  personal  estate  to  such  tenant  in  tail  as  first 
attains  the  age  of  twenty-one,  if  the  tenant  in  tail  is  not  of  age 

I  Lear  v.  Leggett,  2  Sim.  479;  1  R.  &  M.  690;  Wilkinson  v.  Wilkinson, 
G.  Coop.  259;  3  Swanst.  528;  Whitfield  v.  Prickett,  2  Keen,  908.  [  Re 
Harvey,  60  L.  T.  710.] 

«  Cooper  V.  Wyatt,  5  Madd.  482;  Dommett  v.  Bedford,  6  T.  R.  684. 

»  Avison  V.  Holmes,  1  John.  &  H.  530;  Barnet  v.  Blake,  2  Dr.  &  Sm.  117. 

*  Bonfiold  V.  Hassell,  32  Beav.  217. 

"  Re  Stulz  Trusts,  4  De  G.,  M.  &  G.  404;  1  Eq.  R.  334. 

*  Re  Waley's  Trust,  3  Eq.  R.  380.  And  as  to  the  general  effect  of  pro- 
ceedings in  insolvency  and  bankruptcy,  and  of  annulling  the  proceedings. 
Bee  Lloyd  v.  Lloyd,  1  W.  N.  307;  Pym  v.  Lockyer,  12  Sim.  394;  Brandon 
V.  Aston,  2  Y.  &  C.  Ch.  24;  Churchill  v.  Marks,  1  Coll.  441;  Townsend  v. 
Early,  34  Beav.  23;  Martin  v.  Margham,  14  Sim.  230;  Graham  v.  Lee,  23 
Beav.  388. 

attempts  to  alien,  and  thereupon  to  in  the  pioperty,  as  of  a  right  to  the 

B.  and  his  heirs."  income,    a  provision   that    it    shall 

Such  limitations  over  upon  at-  cease  upon  his  subsequent  bank- 
tempted  alienation  or  upon  the  ruptcy  is  treated  as  an  attempt  to 
happening  of  any  other  contingencj',  defraud  creditors  even  though  the 
are  void  within  the  rule  against  per-  settlor  was  solvent  at  the  time  of  the 
petuities  unless  the  contingency  settlement;  and  even  subsequent 
must  happen,  if  at  all,  within  the  creditors  have  a  right  to  have  the 
period  allowed  by  the  rule  for  the  debtor's  interest  applied  to  payment 
vesting  of  estates.  See  Thomas  v.  of  their  claims.  Mackintosh  v. 
Thomas,  87  L.  T.  58;  First  Univer-  Pogose,  [1895]  1  Ch.  505;  In  re 
ealist  Soc.  v.  Boland,  155  Mass.  Johnson,  [1904]  1  K.  B.  134;  Hig- 
171.  ginbottom   v.    Holme,    19   Vee.   88; 

Where  the  settlor  has  made  him-  Murphy  i'.  .\braham,  15  Ir.  Ch.  371; 

self  the  beneficiary  of  an  interest  infra,  §  555,  note. 

037 


§  390.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

at  the  testator's  death,  the  event  may  never  occur,  and  the  trust 
is  void.  But  if  the  personal  property  is  given  upon  trusts  that 
correspond  to  the  settlement  of  the  real  estate,  with  a  proviso 
that  it  should  not  vest  absolutely  in  any  tenant  in  tail  unless  he 
attained  twenty-one,  the  trust  is  good.^ 

§  390.  Thus  where  trusts  are  complete  in  themselves,  or  are 
what  are  termed  executed  trusts,  courts  will  not  mould,  alter,  or 
put  any  peculiar  construction  on  them,  in  order  to  avoid  or 
evade  the  rule  against  perpetuities.  The  ordinary  rules  of  con- 
struction will  be  adhered  to  without  regard  to  the  consequences 
of  avoiding  trusts  that  are  illegal.^  But  in  cases  of  executory- 
trusts,  where  trustees  are  directed  to  settle  a  formal  deed  of 
trust  upon  terms  which  are  faintly  and  incompletely  sketched, 
another  rule  will  be  applied.  If  from  the  articles  or  will  it  ap- 
pears that  a  perpetuity  was  intended,  that  must  be  the  end  of 
the  trust,  whether  executed  or  executory.  But  if  the  direct 
object  of  the  limitations  suggested  in  the  articles  is  not  the 
creation  of  a  perpetuity,  and  if  the  remoteness  is  confined  to 
some  of  the  distant  links  only  in  the  chain  of  limitations,  equity, 
in  decreeing  the  settlement,  will  carry  into  effect  the  general 
intention,  especially  if  the  expression  of  that  intention  clearly 
indicates  that  the  limitations  are  to  be  carried  out  so  far  as  the 
law  allows.^  (a) 

1  Gosling  V.  Gosling,  1  De  G.,  J.  &  S.  1,  17,  Am.  ed.  Perkins,  note  1; 
8.  c.  L.  R.  1  H.  L.  279;  IJncoln  i;.  Newcastle,  12  Ves.  218;  Dungannon 
V.  Smith,  12  CI.  &  Fin.  546;  Scarsdale  v.  Curzon,  1  John.  &  H.  40. 

2  Blagrave  v.  Hancock,  16  Sim.  371. 

'  Ante,  §  376;  Bankes  v.  Le  Despencer,  10  Sim.  576;  7  Jur.  210;  11  Sim. 
508;  Lincoln  v.  Newcastle,  3  Ves.  387;  12  Ves.  218;  Phipps  v.  Kelynge,  2 
V.  &  B.  57,  n.;  Woolmore  v.  Burrows,  1  Sim.  512;  Dorchester  v.  Effingham, 
10  Sim.  587,  588,  n.;  3  Beav.  180;  Kampf  v.  Jones,  2  Keen,  756;  Tregonwell 
V.  Sydenham,  3  Dow,  194;  1  Jar.  on  Wills,  235;  n.;  see  argument  of  Sir 
Edward  Sugden  in  Bengough  v.  Edridge,  1  Sim.  226,  227;  Mogg  v.  Mogg,  1 
Mer.  654;  1  Jar.  on  Pow.  Dev.  414,  and  note;  Trevor  v.  Trevor,  13  Sim. 
108;  1  H.  L.  Gas.  239;  Tennent  v.  Tennent,  Drury,  161;  Boydellt;.  Gohghtly, 
14  Sim.  346;  White  v.  Briggs,  15  Sim.  17;  Vanderplank  v.  King,  3  Hare,  5; 

(a)   In  Edgerly  v.  Barker,   66  N.  H.  434,  this  principle  was  applied 
to  an  executed  trust. 
638 


CHAP.  XIII.]  LEGISLATION.  (§  391. 

§  391.  In  Bome  of  the  States,  legislation  has  been  had  whereby 
the  period  within  which  estates  must  vest  is  shortened.  Thus 
in  Alabama  ^  estates  may  be  given  to  wife  and  children,  or 
children  only,  severally  successively,  and  jointly,  and  to  the 
heirs  of  the  body  of  the  survivor,  if  they  come  of  age,  and  in 
default  thereof  over.  But  gifts  to  others  than  wife  and  children 
must  vest  within  the  term  of  three  lives  in  being,  and  ten  years 
thereafter.  In  Connecticut,'^  no  estate  can  be  given  by  deed  or 
will  to  any  person  or  persons,  except  such  as  are  in  being,  or  to 
the  immediate  issue  or  descendants  of  such  as  are  in  being  at 
the  time  of  making  the  deed  or  will,  (a)  In  New  York,^  Michi- 
gan,^ Minnesota,^  and  Wisconsin,*^  the  absolute  power  of  alien- 
ation cannot  be  suspended,  by  any  limitation  or  condition,  for  a 

Monypenny  v.  Deering,  7  Hare,  568;  2  De  G.,  M.  &  G.  145;  16  M.  &  W. 
418;  Hare  v.  Pew,  25  Beav.  335;  Humberston  v.  Humberston,  2  Vern.  737; 
1  P.  Wms.  332;  Pr.  Ch.  455;  Deerhurst  v.  St.  Albans,  5  Madd.  232;  Jerv-oise 
V.  Northumberland,  1  J.  &  W.  559;  Blackburn  v.  Stables,  2  V.  &  B.  367; 
Rowland  v.  Morgan,  2  Phill.  763;  Parfitt  i;.  Hember,  L.  R.  4  Eq.  443. 
'  Code  1852,  §  1309.     [  Civil  Code  (1907),  §  3417.] 

*  Comp.  Stat.  18.54,  p.  630,  §  4. 

»  2  Rev.  Stat.  (4th  ed.)  133,  §§  15-20;  Knox  v.  Jones,  47  N.  Y.  398; 
Wood  V.  Wood,  5  Paige,  596;  Amory  v.  Lord,  5  Seld.  503;  Schutter  t;.  Smith, 
41  N.  Y.  328;  Gott  v.  Cook,  7  Paige,  531;  Van  Vechten  v.  Van  Vechten,  8 
Paige,  104.  [Real  Property  Law,  1909,  §  42  et  seq.  IV  Consol.  Laws  (1909), 
p.  3381 ;  Personal  Property  Law,  1909,  §  11,  ibid.  p.  2840.] 

*  Comp.  Laws,  1857,  c.  85,  §§  15-26.  [  Comp.  Laws,  1897,  §§  8796, 
8797,  8789,  8910,  8911.] 

»  Comp.  Stat.  1859,  c.  31,  §§  15-26.  [Rev.  Laws,  1905,  §§  3203-3205, 
3319.] 

»  Rev.  Stat.  1858,  c.  83,  §§  15-26.  [  Statutes  1898,  §  2039  as  amended 
by  c.  511  of  1905,  §§  2038,  2040,  2152,  2153,  two  lives  and  twenty-one  years. 
Neither  the  statute  nor  the  common-law  rule  applies  to  personalty. 
Danforth  v.  Oshkosh,  119  Wis.  262;  Becker  t'.  Chester,  115  Wis.  90.] 

(a)  This  provision  in  the  statutes  still  controls  as  to  interests  created 

of    Connecticut    was    repealed    by  previous  to  that  time.     Tingier  v. 

chapter  249,  Acts  of  1895,  leaving  no  Chamberlin,    71  Conn.  466;   Secur- 

statutory  rule.     The  result  seems  to  ity  Co.  v.  Snow,  70  Conn.  288;  Cody 

be  that  the  common-law  rule  applies  v.  Staples,  80  Ccnn.  82.    See  White 

as  to  wills  and  deeds  coming  into  v.   Allen,   76   Conn.    185;   Bates  v. 

operation  since  1895;  but  the  repeal  Spooner,  75  Conn.  501;  Loonier  v. 

had  no  retroactive  effect,  and  the  Loomer,  76  Conn.  522. 
law  as  it  existed  previous  to  1S95 

639 


§  391.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

longer  period  than  the  continuance  of  two  lives  in  being  at  the 
creation  of  the  estate,  except  that  a  contingent  remainder  in  fee 
may  be  limited  on  a  prior  remainder  in  fee  to  take  effect  in  the 
event  that  the  persons  to  whom  the  first  remainder  is  limited 
shall  die  under  the  age  of  twenty-one  years,  or  upon  any  other 
contingency  by  which  the  estate  of  such  persons  may  be  deter- 
mined during  their  minority.  Successive  limitations  of  estates 
for  life  are  not  valid  except  to  persons  in  being  at  the  time  of 
their  creation.  And  if  a  remainder  is  limited  on  more  than  two 
successive  estates  for  lives  in  being,  all  the  subsequent  succes- 
sive estates  are  void ;  and  upon  the  death  of  those  two  persons 
the  remainder  will  take  effect  as  if  no  other  life-estate  had  been 
created.  No  remainder  can  be  created  for  the  life  of  a  person 
other  than  the  grantee  or  devisee  of  such  estate,  unless  such 
remainder  is  in  fee;  nor  can  a  remainder  be  created  upon  such 
an  estate  in  a  term  of  years,  unless  it  is  for  the  whole  residue 
of  the  term.  If  more  than  two  lives  are  named,  the  remainder 
takes  effect  upon  the  death  of  the  two  persons  first  named,  in 
the  same  manner  as  if  no  other  persons  had  been  named  or 
lives  introduced.  A  contingent  remainder  cannot  be  limited  on 
a  term  for  years,  unless  the  contingency  on  which  it  is  limited 
is  such  that  it  must  vest  during  the  continuance  of  two  lives 
in  being  at  the  creation  of  such  remainder,  or  at  the  termina- 
tion of  such  term  of  years.  Thus  a  limitation  to  A.  for  life, 
remainder  to  B.  for  life,  remainder  to  C.  and  D.,  and  the  sur- 
vivor of  them,  is  within  the  statute,  and  void  as  to  C.  and  D. 
as  a  limitation  upon  more  than  two  lives  in  being.^  If  the 
power  of  alienation  is  suspended  for  an  indefinite  period,  the 
trust  is  void.^  (a) 

»  Arnold  v.  Gilbert,  5  Barb.  190. 

*  Donaldson  v.  American  Tract  Soc,  1  N.  Y.  Sup.  Ct.  Add.  15;  Leon- 
ard V.  Bell,  1  N.  Y.  Sup.  Ct.  608;  Kiah  v.  Grenier,  id.  388. 

(a)  These  provisions  of  the  New  restraints  upon  vested  interests,  but 

York  statutes  have  been  interpreted  by  attempts  to  create  either  vested 

as  a  modification  of  the  rule  against  or  future  estates  which  from  their 

perpetuities.    The  statute  is  violated  nature  or  by  some  statute  are  in- 

not    only    by    attempts    to    place  alienable  for  a  period  which  by  any 

640 


CHAP.  XIII. 


LEGISLATION. 


[§  392. 


§  392.    In  Ohio,'  no  estate  can  be  limited  to  any  person  or 
persons,  except  they  are  in  being,  or  to  the  immediate  descend- 

'  Rev.  Stat.  1854,  c.  42,  §  1.      [  Bates'  Annot.  Stat.  (5th  ed.)  §  4200.] 


possibility  may  last  beyond  the 
duration  of  two  lives  in  being  at 
the  time  of  their  creation.  Such 
attempted  estates  are  void  even 
before  the  time  set  for  their  vesting. 
In  re  Wilcox,  194  N.  Y.  288.  This 
is  true  of  estates  which  may  not  vest 
within  the  duration  of  two  lives  in 
being,  because  an  unvested  estate 
is  inalienable.  Dana  v.  Murray, 
122  N.  Y.  604;  In  re  Wilcox,  194 
N.  Y.  288.  The  same  is  true  of  a 
trust  to  pay  income  which  may 
continue  beyond  the  duration  of 
two  lives  in  being  at  the  time  of  its 
creation,  because  another  statute 
has  made  the  interest  of  a  benefi- 
ciary of  such  a  trust  inalienable. 
Underwood  v.  Curtis,  127  N.  Y. 
523;  Fowler  v.  Ingersoll,  127  N.  Y. 
472;  Brown  v.  Quintard,  177  N.  Y. 
75;  Herzog  v.  Title  Guarantee  & 
Tr.  Co.,  177  N.  Y.  86;  People's 
Trust  Co.  V.  Flynn,  94  N.  Y.  S. 
436,  106  App.  Div.  78;  Matter 
of  Trotter,  104  App.  Div.  118 
(affirmed,  182  N.  Y.  465);  Robb  v. 
Washington  &  Jefferson  College, 
185  N.  Y.  485;  Whitefield  v.  Criss- 
man,  108  N.  Y.  S.  110,  123  App. 
Div.  233;  Farmers'  Loan  &  Trust 
Co.  V.  Kip,  192  N.  Y.  S.  266. 

The  fact  that  the  trustee  has 
power  of  sale  will  not  save  the  trust 
if  the  interest  of  the  beneficiaries  is 
inalienable  for  a  period  which  may 
extend  beyond  the  duration  of  two 
lives  in  being.  In  re  Wilcox,  194 
N.  Y.  288.  On  the  other  hand,  a 
restraint  upon  the  trustee's  power 
to  sell  for  a  time  which  may  exceed 
the  statutory  limit  violates  the  stat- 
VOL.  I.  —  41 


ute  even  when  the  interests  of  the 
beneficiaries  are  alienable.  See  In 
re  Walkerly,  108  Cal.  627. 

The  two  lives  which  mark  the 
possible  suspension  of  absolute  alien- 
able ownership  are  not  necessa- 
rily those  of  the  persons  interested. 
Schermerhom  i;.  Cotting,  131  N.  Y. 
48;  Bird  v.  Pickford,  141  N.  Y.  18. 
A  child  en  venire  sa  mere  at  the  time 
of  a  testator's  death  has  been  held 
to  be  a  life  in  being  within  the 
meaning  of  the  statute.  Cooper 
t;.  Heatherton,  73  N.  Y.  S.  14,  65 
App.  Div.  561.  The  fact  that  the 
person  who  is  to  take  on  the  ter- 
mination of  the  two  lives  in  being 
is  a  minor,  and  for  that  reason  in- 
capable of  alienating  his  interest  in 
the  property,  does  not  affect  the 
validity  of  a  gift  to  him.  Quade  v. 
Bertsch,  72  N.  Y.  S.  916,  65  App. 
Div.  600  (affirmed  173  N.  Y.  615). 
See  Estate  of  Campbell,  149  Cal. 
712. 

In  States  which  have  a  statute 
provision  similar  to  that  of  New 
York  a  similar  interpretation  has 
been  given  the  statute.  Brown  v. 
Columbia  Finance,  etc.,  Co.,  123  Ky. 
775;  Fidelity  Trust  Co.  v.  Lloyd,  78 
S.  W.  896  (Ky.  1904);  Phillips  v. 
Heldt,  33  Ind.  App.  388;  Casgrain  i-. 
Hammond,  134  Mich.  419;  Niles 
V.  Mason,  126  Mich.  482;  Torpy  v. 
Betts,  123  Mich.  239;  Campbell- 
Kawannanakoa  v.  Campbell,  152 
Cal.  201;  In  re  Walkerly,  108  Cal. 
627;  Estate  of  Campbell,  149  Cal. 
712.  But  not  all  of  them  have  stat- 
utes restraining  the  alienation  of  a 
cestui's  right  to  income.    See  John- 

641 


§392. 


PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 


ants  of  such  as  are  in  being  at  the  time  of  making  of  the  deed  or 
will.  In  Mississippi/  fees-tail  are  prohibited,  and  converted 
into  fees-simple;  and  estates  may  be  limited  in  succession  to 
two  donees  in  being,  and  to  the  heirs  of  the  body  of  the  remainder- 
man, and  in  default  thereof  to  the  heirs  of  the  donor  in  fee.  In 
Indiana,-  the  power  of  selling  lands  cannot  be  suspended,  by 
any  limitation  or  condition,  longer  than  the  continuance  of  any 
number  of  specified  lives  in  being  at  the  time  of  the  creation  of 
the  estate;  except  that  contingent  remainders  in  fee  may  be 
limited  on  a  prior  remainder  in  fee,  to  take  effect  in  the  event 
that  the  person  or  persons  to  whom  the  first  remainder  is  limited 


»  Code,  1857,  c.  38,  §  1,  art.  3;  see  Jordan  v.  Roach,  32  Miss.  481. 
(1906),  §  2765;  Banking  Co.  v.  Field,  84  Miss.  646.] 

2  Rev.  Stat.  1852,  p.  238,  §  40.    [  Bums'  Stat.  (1908),  §  3998.] 


[Code 


son's  Trustee  v.  Johnson,  79  S.  W. 
293  (Ky.  1904). 

In  Minnesota,  Micliigan,  and  Wis- 
consin the  statutes  forbidding  re- 
straints or  alienation,  though  similar 
in  form  to  the  New  York  statute,  do 
not  apply  to  personalty.  In  Minne- 
sota and  Michigan  it  has  been  held 
that  the  common-law  rule  against 
perpetuities  applies  to  personalty. 
In  re  Tower's  Estate,  49  Minn.  371; 
Toms  V.  WilUams,  41  Mich.  552,  569. 
In  Wisconsin  it  has  been  held  that 
neither  the  statute  nor  the  common- 
law  rule  applies  to  personaltj',  Beck- 
er V.  Chester,  115  Wis.  90;  Danforth 
V.  Oshkosh,  119  Wis.  262;  Dodge  v. 
WiUiams,  46  Wis.  70;  see  In  re 
Adelman's  WiU,  138  Wis.  120; 
Holmes  v.  Walter,  118  Wis.  409; 
with  the  result  that  whenever  a 
trustee  has  power  to  convert  real  es- 
tate and  to  hold  the  proceeds  in- 
vested as  personalty  there  is  no 
unlawful  restraint  upon  alienation, 
and  no  rule  of  remoteness  apphes  to 
the  beneficial  interests.     Ibid. 

It  has  been  held  that  the  Cali- 

642 


fomia  statute  provisions  apply  to  all 
kinds  of  property.  In  re  Walkerly, 
108  Cal.  627,  656-658. 

The  New  York  court  has  held  in 
several  cases  that  the  validity  of  a 
bequest  of  personal  property  with  re- 
spect to  the  rule  against  perpetuities 
is  to  be  determined  by  the  law  of  the 
testator's  domicile.  Cross  v.  U.  S. 
Trust  Co.,  131  N.  Y.  330;  Dammert 
V.  Osbom,  140  N.  Y.  30,  141  N.  Y. 
564.  To  the  same  effect  see  Penfield 
V.  Tower,  1  N.  D.  216.  But  the  New 
York  court  has  also  upheld  a  be- 
quest of  personalty  by  a  resident  of 
that  State,  in  trust  to  pay  life  annu- 
ities to  seven  persons,  since  the  trust 
funds  were  to  be  paid  over  to  a 
Pennsylvania  corporation  and  there 
administered.  Robb  v.  Washington 
and  Jefferson  Coll.,  185  N.  Y.  485. 
Although  the  trust  would  have  been 
invalid  under  New  York  law  be- 
cause the  interests  of  the  annuitants 
are  inalienable,  the  court  seemed  to 
be  of  opinion  that  this  invaUdity 
was  cured  because  the  interests  were 
alienable  in  Pennsylvania. 


CHAP.  XIII. 


LEGISLATION.  [§  392. 


shall  be  under  the  age  of  twenty-one  years,  or  upon  any  other 
contingency  by  which  the  estate  of  such  person  or  persons  may 
be  determined  during  their  minorities.  In  Kentucky,'  the  abso- 
lute power  of  alienation  cannot  be  suspended  by  limitations  or 
conditions  for  a  longer  period  than  during  a  life  or  lives  in  being 
and  twenty-one  years  and  ten  months.  So,  in  lowa,^  alienation 
cannot  be  suspended  for  a  period  longer  than  lives  in  being  and 
twenty-one  years.  In  Arkansas  ^  and  Vermont,^  their  constitu- 
tions declare  that  a  perpetuity  shall  not  be  allowed.  What  is  a 
perpetuity  in  those  States  would  necessarily,  in  the  absence  of 
legislation,  be  determined  by  the  common-law  rule.  So  it  is 
conceived  that  the  common  law  prevails  in  those  States.  In  all 
the  other  States,  except  perhaps  Louisiana,  where  the  rules  of 
property  were  derived  from  the  civil  law  or  the  code  of  France, 
and  California,  (a)  where  they  were  derived  from  the  Spanish 

1  Rev.  Stat.  c.  80,  §  34.  [  Stat,  of  Ky.  (1909)  §  2055;  Brown  v.  Columbia 
Finance,  etc.,  Co.,  123  Ky.  775;  Fidelity  Trust  Co.  v.  Lloyd,  78  S.  W.  896 
(Ky.  1904);  Johnson's  Trustee  v.  Johnson,  79  S.  W.  293  (Ky.  1904).] 

2  Code,  1851,  p.  1191.  [  Code,  1897,  §  2901;  Meek  v.  Briggs,  87  Iowa, 
610,  618;  PhilUps  v.  Harrow,  93  Iowa,  92,  106.] 

'  Const,  art.  2,  §  19. 

*  Const,  pt.  2,  §  36;  Gen.  Stat.  1863,  pp.  25,  446. 

(o)  Statute  provisions  similar  to  Dwyer  v.  Cahill,  228  111.  617;  Hill 
and  evidently  taken  from  the  New  v.  Gianelli,  221  111.  286;  Pitzel  v. 
York  statutes  have  been  enacted  in  Schneider,  216  111.  87;  Schuknecht  v. 
California,  Montana,  North  Dakota,  Shultz,  212  111.  43;  Eldred  v.  Meek, 
and  South  Dakota,  with  the  excep-  183  111.  26;  Keeler  v.  Lauer,  73  Kan. 
tion  that  the  limit  is  "lives  in  being."  388;  Towle  v.  Doe,  97  Me.  427;  An- 
Cal.  Civ.  Code,  §§  715,  716;  Mont,  drews  v.  Lincoln,  95  Me.  541;  Robin- 
Civ.  Code  (1907),  §§  4463-4465,  son  v.  Bonaparte,  102  Md.  63;  Gra- 
4492  ;  No.  Dak.  Civ.  Code  (1905),  ham  v.  Whitridge,  99  Md.  248,  274; 
§§  4744-4746,4771,4772,  4872,  4873;  Gray  v.  Whittemore,  192  Mass.  367; 
So.  Dak.  Civ.  Code,  §§224-226,  251,  Brown  v.  Wright,  194  Mass.  540; 
252,  353,  354.  Howe  v.  Morse,  174  Mass.  491 ;  Shep- 

The  common-law  rule  was  recog-  perd  ;;.  Fisher,  206  Mo.  208;  Edgerly 

nized  in  the  following  recent  cases,  v.  Barker,  66  N.  H.  434;  Ogden  t'. 

Cribbs  v.  Walker,  74  Ark.  104,  120;  McLane,  73  N.  J.  Eq.  159;  Lembeck 

Chilcott  t'.  Hart,  23  Colo.  40;  Quin-  v.  Lembeck,  73  N.  J.  Eq.  427;  Ste- 

lan  V.  Wickman,  233  111.  39;  Keyes  v.  phens  v.  Dayton,  220  Pa.  St.  .522; 

Northern  Trust  Co.,  227   HI.  354;  Kountz's  Estate,  213  Pa.  St.  390; 

643 


§  394.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

laws,  the  common-law  rules  as  to  perpetuities  are  in  force,  and 
trusts  that  are  contrary  to  these  rules  are  void. 

§  393.  Intimately  connected  with  this  matter  is  the  rule 
against  accumulations.  Trusts  for  accumulation  must  be 
strictly  confined  w^ithin  the  limits  of  the  rule  against  perpe- 
tuities. It  has  been  seen  that  a  settlor  may  restrain  the  alien- 
ation of  property  for  a  life  or  lives  in  being  and  twenty-one 
years;  and,  in  case  the  beneficiary  is  then  en  ventre  sa  mere,  an 
addition  of  nine  months  may  be  made  to  the  term.  In  analogy 
to  this  rule,  a  settlor  may  prevent  the  beneficial  enjoyment  of 
property  for  the  same  length  of  time,  by  directing  an  accumu- 
lation of  the  interest,  income,  rents,  or  profits.^  If  a  trust  for 
accumulation  may  possibly  exceed  this  limit,  it  is  wholly  void, 
and  it  cannot  be  cut  down  to  the  legal  limit,  (a) 

§  394.  The  above  is  the  rule  where  there  are  no  statutes  to 
control  it.  Trusts,  by  which  the  vesting,  alienation,  or  enjoy- 
ment of  property  is  postponed  beyond  the  legal  period,  are  con- 
sidered as  contrary  to  public  policy,  and  therefore  void;  and  as 

1  Fosdick  V.  Fosdick,  6  Allen,  43;  Hooper  v.  Hooper,  9  Cush.  122;  Thom- 
dike  f).  Loring,  15  Gray,  391;  Boughton  v.  James,  1  Coll.  26;  1  H.  L.  Cas. 
406;  Southampton  v.  Hertford,  2  V.  &  B.  54;  Marshall  v.  HoUoway,  2  Swanst. 
432;  Curtis  v.  Luken,  5  Beav.  147;  Brown  v.  Stoughton,  14  Sim.  369;  Scaris- 
brooke  v.  Skelmersdale,  17  Sim.  187;  Turvin  v.  Newcome,  3  K.  &  J.  16; 
Craig  V.  Craig,  3  Barb.  Ch.  76;  Mathews  v.  Keble,  L.  R.  1  Eq.  467;  L.  R. 
3  Ch.  691 ;  Killam  v.  Allen,  52  Barb.  605;  Dutch  Reform  Church  v.  Brandon, 
id.  228;  White  v.  Howard,  id.  294;  Hillyard  ;;.  Miller,  10  Barr,  326. 

Lawrence's  Estate,  136  Pa.  St.  354;  years  is  an  infant  whose  parent  is 

Loyd  V.  Loyd,  102  Va.  519;  Starcher  capable  of  supporting  him.     A  di- 

Broa.  V.  Duty,  61  W.  Va.  371,  373;  rection  to  apply  rents  or  income  in 

Fitchie  I'.  Brown,  211  U.  S.  321  (Ha-  payment   of  a  specified  sum  to  a 

waii).      See    Georgia    Code  (1895),  designated  person  is  not  a  direction 

§  3102.  to  accumulate.    Rogers'  Estate   179 

(a)  An    accumulation    for    more  Penn.  St.  602. 
than  twenty-one  years  may  legally  In  New  York,  directions  to  ac 

take    place    by    operation    of    law.  cumulate  rents,   except  during  the 

Bryan  v.  Collins,   16  Beav.  14,  17.  minority  of  legatees,    are   void  by 

As  where  the  person  who  becomes  statute, 
entitled  after  accumulation  of  some 

644 


CHAP.  XIII.]  ACCUMULATIONS.  [§  394. 

courts  cannot  substitute  legal  directions  in  the  place  of  illegal 
provisions  in  a  will,  the  whole  fails  if  there  is  an  illegal  gift  for 
accumulation.  The  period  during  which  accumulation  might 
go  on  was  found  to  be  inconvenient  in  case  a  settlor  availed  him- 
self of  all  its  terms.  Thus  ]\Ir.  Thellusson,  by  an  ingenious  and 
skilful  use  of  these  legal  limitations,  constructed  a  will  by  which 
a  fortune  of  £600,000  was  left  to  accumulate  for  some  person 
to  come  into  existence  in  the  future,  answering  a  certain  descrip- 
tion, while  mere  pittances  were  given  to  his  children  and  grand- 
children then  in  being.  It  was  calculated  that  accumulations 
might  go  on  under  this  will  from  seventy-five  to  one  hundred 
years,  and  that  the  gross  accumulation  would  amount  to  a  sum 
from  £32,000,000  to  £100,000,000,  according  to  the  time  during 
which  it  might  accumulate.  The  will  was  most  carefully  con- 
sidered and  discussed  in  all  the  courts,  but  it  was  found  to  be 
draw^n  carefully  within  the  law',  and  all  its  provisions  were  sus- 
tained.^ Thereupon  Parliament  interfered,  and  passed  a  statute, 
usually  called  the  Thellusson  Act,  which  curtailed  the  period 
during  which  accumulations  might  be  directed.'  This  act  estab- 
lished four  alternate  periods  during  which  accumulations  might 
be  made:  (1)  The  life  of  the  settlor;  (2)  Twenty-one  years 
from  the  death  of  the  settlor;  (3)  The  minority  or  minorities  of 
any  persons  living  at  the  death  of  the  settlor;  (4)  During  the 
minority  or  minorities  of  any  person  or  persons  who,  if  of  full 
age,  would  be  entitled  under  the  limitations  to  the  income  which 
is  directed  to  be  accumulated,  (a) 


'  Thellusson  v.  Woodford,  4  Ves.  227;  11  Ves.  112;  4  Kent,  Com.  285. 
»  Stat.  39  and  40  Geo.  III.  c.  98. 


(a)  The  Accumulations  Act  of  pose  of  improvements  which  are  in 
1892  (55  and  56  Vict.  c.  58)  hmits  the  nature  of  repairs.  Vine  v.  Ra- 
the choice  to  the  fourth  period,  if  leigh,  [1891]  2  Ch.  13,  26;  In  re  Ma- 
there  is  a  direction  to  accumulate  for  son,  [1891]  3  Ch.  467.  As  to  the 
the  purchase  of  land  only.  See  In  re  exception  in  favor  of  "portions,"  see 
Danson,  13  Rep.  633.  It  has  been  In  re  Stephens,  [1904]  1  Ch.  322. 
held  that  the  Thellusson  Act  does  not  See  also  In  re  Heathcote,  [1904]  1 
prevent  accumulations  for  the  pur-  Ch.  826. 

645 


§  395.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  395.  It  has  been  determined  that  these  four  periods  are 
alternative,  and  not  cumulative,  and  that  accumulations  must 
be  confined  to  one  of  them.^  If  the  accumulation  does  not  begin 
until  several  years  after  the  testator's  death,  it  must  cease  at 
the  end  of  twenty-one  years  from  his  death,^  excluding  the  day 
of  his  death.^  The  act  further  directs,  that  any  accumulation 
directed  contrary  to  its  provision  shall  be  void.  By  these  words 
accumulations  directed  contrary  to  the  statute  are  not  wholly 
void,  as  at  common  law,  but  only  the  excess  beyond  the  time 
allowed  by  the  statute  is  void.*  Mr.  Lewis  calls  this  a  "  rule 
of  construction  entirely  novel."  ^  It  is  also  said,  that  the  act  is 
one  of  restraining  force,  and  cannot  give  validity  to  trusts  for 
accumulation,  which  are  in  themselves  void,  as  transgressing 
the  common-law  limits  of  a  perpetuity.  Thus  a  direction  to 
accumulate  beyond  the  time  allowed  by  the  statute,  but  within 
the  time  allowed  by  the  common  law,  w^ll  be  good  for  the  actual 
time  allowed  by  the  statute,  and  void  only  for  the  excess;  but  a 
direction  to  accumulate,  beyond  the  rule  of  common  law  against 
perpetuity,  is  wholly  void  notwithstanding  the  statute.  Con- 
sequently, in  England  a  trust  for  accumulation  may  verge 
almost  upon  the  outside  of  the  limit  of  a  perpetuity,  and  yet  be 

1  Ellis  V.  Maxwell,  3  Beav.  587;  Rosslyn's  Trust,  16  Sim.  391;  Wilson  v. 
Wilson,  1  Sim.  (n.  s.)  288.  [  Jagger  v.  Jagger,  25  Ch.  Div.  729;  Re  Erring- 
ton,  76  L.  T.  616.] 

*  Nettleton  v.  Stephenson,  3  De  G.  &  Sm.  366;  Att.  Gen.  v.  Poulden, 
3  Hare,  355;  Webb  v.  Webb,  2  Beav.  493;  Shaw  v.  Rhodes,  1  Myl.  &  Cr. 
135. 

'  Toder  i'.  Sansom,  1  Brown,  P.  C.  468;  Lester  v.  Garland,  15  Ves. 
248;  East  v.  Lowndes,  11  Sim.  434.  And  the  day  of  the  death  was  ex- 
cluded by  the  rules  of  the  common  law,  independently  of  the  statute. 
Toder  v.  Sansom,  ut  supra. 

*  Griffiths  V.  Vere,  9  Ves.  127;  Palmer  v.  Holford,  4  Rues.  403;  Lang- 
don  V.  Simson,  12  Ves.  295;  RosbIjti's  Trust,  16  Sim.  391;  Freke  v.  Lord 
Carbery,  L.  R.  16  Eq.  461.  There  are  a  great  number  of  cases  upon  this 
construction,  but  they  are  not  important  in  America.  The  reader  can  see 
1  Jarm.  on  Wills,  286;  Hill  on  Trustees,  394;  Lade  v.  Holford,  Amb.  479; 
Eyre  v.  Marsden,  2  Keen,  564;  4  Myl.  &  Or.  231;  Marshall  v.  HoUoway, 

3  Swanst.  432;  Southampton  v.  Hertford,  2  V.  &  B.  61;  Haly  v.  Dannister, 

4  Madd.  277. 

*  Lewis  on  Per.  593. 

646 


\ 


CHAP.  XIII.]  ACCUMIL-ITIONS.  [§  390. 

void  only  for  the  excess  l)eyond  the  time  estabhshed  in  the 
statute;  but  if  a  trust  for  accumulation  transcends  in  the  slight- 
est degree  the  boundary  of  a  perpetuity,  it  is  wholly  void,  and 
will  fail  without  regard  to  the  actual  course  of  events.' 

§  396.  If  a  good  bequest  is  made  to  a  devisee,  subject  to  an 
illegal  or  void  direction  to  accumulate,  as  where  such  direction 
is  independently  engrafted  upon  the  devise,  and  can  be  stricken 
out  without  destroying  the  substantial  form  of  the  gift,  the 
gift  may  be  held  to  be  good,  but  the  direction  to  accumulate 
void.^  But  where  the  gift  is  limited  to  take  effect  njter  a  pre- 
scribed period  of  accumulation,  and  out  of  the  accumulated 
fund,  as  part  of  the  subject-matter  of  the  gift,  and  such  period 
of  accumulation  is  illegal  or  too  remote,  the  gift  itself  will  fail, 
as  the  form  of  the  gift  in  such  case  is  of  the  substance  of  it.^  If 
the  gift  and  all  its  accumulations  are  of  necessity  to  vest  in 
some  person  absolutely,  in  such  manner  that  he  will  have  a 
right  to  call  for  the  fund,  and  stop  the  accumulations  within 
the  legal  period,  the  bequest  will  be  good,  although  such  per- 
sons should  allow  the  accumulations  to  go  on  as  directed;*  that 
is,  the  same  rule  applies  as  in  the  case  of  perpetuities.  The  law 
concerns  itself  with  the  possibilities  of  an  illegal  accumulation, 
and  not  with  the  fact,  whether  a  person,  having  an  absolute 
vested  right  to  a  fund,  allows  it  to  go  on  accumulating  in  accord- 
ance with  a  void  direction."* 

*  Lewis  on  Per.  593,  594;  Hargrave,  Accum.  91,  110;  1  Pow.  on  Devi, 
by  Jarm.  419;  2  Prest.  Abst.  183.  [  See  Smith  v.  Cuninghame,  13  L.  R. 
Ir.   480.] 

2  Haxtum  t'.  Corse,  2  Barb.  Ch.  506;  Craig  v.  Craig,  3  Barb.  Ch.  76; 
Martin  v.  Margham,  14  Sim.  230;  Williams  v.  Williams,  4  Selden,  525; 
Phelps  V.  Pond,  23  N.  Y.  69;  Kilpatrick  v.  Johnson,  15  N.  Y.  322;  Hawley 
t;.  James,  5  Paige,  318;  Philadelphia  v.  Girard,  45  Penn.  St.  1. 

'  Amory  v.  Lord,  5  Selden,  403. 

*  Phipps  V.  KeljTige,  2  Ves.  &  B.  57,  n.,  63,  62;  Tregonell  v.  Sydenham, 
3  Dow.  194;  Lewis  on  Per.  640;  Conner  v.  Ogle,  4  Md.  Ch.  443;  Saunders 
V.  Vautier,  4  Beav.  115;  Cr.  &  Phil.  240;  Oddie  v.  Brown,  4  De  G.  &  J.  179; 
Bateman  t'.  Hotchkin,  10  Beav.  426;  Bacon  t'.  Proctor,  T.  &  R.  31;  Briggs 
V.  Oxford,  1  De  G.,  M.  &  G.  363;  Williams  v.  Lewis,  6  H.  L.  Cas.  1013. 

*  Ante,  §  181. 

647 


§  397.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  397.  When  a  direction  to  accumulate  is  void  for  a  part  of 
the  term,  the  income  during  such  void  part  will  belong  to  the 
heir  or  next  of  kin,  or  to  the  residuary  legatee.  Mr.  Jarman 
has  pointed  out  the  destination  of  such  income  as  follows:  (1) 
Where  there  is  a  present  gift  in  possession,  and  the  direction  for 
accumulation  is  merely  to  govern  the  mode  of  enjoyment,  the 
result  is  to  give  those  entitled  the  present  income,  the  same  as  if 
the  direction  had  not  been  given. ^  (2)  Where  the  trust  for 
accumulation  is  grafted  upon  an  estate  where  vesting  is  deferred 
or  made  contingent  until  after  the  period  of  accumulation,  the 
statute  by  stopping  the  accumulation  does  not  hasten  the  vest- 
ing or  the  possession,  and  the  income  goes  to  the  residuary 
legatee  or  the  heir,  according  as  it  is  personal  or  real  estate,  until 
the  vesting  or  possession  of  the  estate  is  matured.  But  where 
the  residue  is  not  given  absolutely,  but  only  for  life  or  years,  the 
interest  upon  a  legacy  thus  directed  to  be  accumulated  beyond 
the  legal  period  goes  into  the  residue  of  the  estate  as  capital.^ 
(3)  Where  a  residue  is  directed  to  be  accumulated,  the  income, 
when  its  accumulation  becomes  illegal,  will  go  to  the  heir  or 
next  of  kin,  according  as  the  property  may  be  real  or  personal 
estate.^  (a)     (4)  The  income  of  the  accumulations  follows  the 

»  Trickey  t-.  Trickey,  3  Myl.  &  K.  560;  Clulow's  Trust,  5  Jur.  (n.  s.)  1002; 
28  L.  J.  Ch.  696;  Combe  v.  Hughes,  11  Jur.  (n.  s.)  194;  1  Jarm.  on  Wills, 
292;  Hawley  v.  James,  5  Paige,  318. 

2  Jones  V.  Maggs,  9  Hare,  605;  Macdonald  v.  Brice,  2  Keen,  276;  Eyre 
V.  Marsden,  id.  574;  Ellis  v.  Maxwell,  3  Beav.  587;  Nettleton  v.  Stephen- 
eon,  3  De  G.  &  Sm.  366;  Barrington  v.  Liddell,  10  Hare,  429;  Att.  Gen. 
V.  Poulden,  3  Hare,  555;  Crawley  v.  Crawley,  7  Sim.  427;  Morgan  v.  Mor- 
gan, 4  De  G.  &  Sm.  175;  Hull  v.  Hull,  24  N.  Y.  647;  1  Jarm.  on  Wills,  292. 
[  But  see  In  re  PhiUips,  49  L.  J.  Ch.  198.] 

*  Skrymsher  v.  Northcote,  1  Swanst.  566;  Macdonald  v.  Bryce,  2  Keen, 
276;  Pride  v.  Fooks,  2  Beav.  437;  Elbome  v.  Goode,  14  Sim.  165;  Wilson 
V.  Wilson,  1  Sim.  (n.  s.)  288;  Bourne   v.  Buckton,  2  Sim.  (n.  s.)  91;  Oddie 

(a)  SeeSt.  John  V.Andrews  Inst.,  come    legally     accumulated    when 

191  N.  Y.  254;  Duncklee  v.  Butler,  there  is  no  express  direction  as  to 

56  N.  Y.  S.  491,  38  App.  Div.  99;  whom   it   is   to   go,    see    Brown   v. 

Weinmann's  Estate,  223  Pa.  St.  508.  Wright,   168  Mass.  506;  Farley  v. 

As  to  the  disposition  of  surplus  in-  Bucklin,  16  R.  I.  378. 

648 


CHAP.    XIII.]  ACCUMULATIONS.  [§  398. 

same  rule  as  the  accumulation.'  These  are  substantially  the 
same  rules  that  apply  to  the  distribution  of  income  which  is 
illegally  directed  to  be  accumulated  at  common  law. 

§  398.  In  New  York,^  Michigan,^  Wisconsin/  and  Minne- 
sota,^ the  common-law  rules  in  relation  to  accumulations  are 
changed  by  statutes,  which  are  substantially  the  same  in  each 
State.  In  those  States  accumulations  may  be  directed  by  deed 
or  will,  during  the  minority  of  one  or  more  persons,  to  com- 
mence with  the  creation  of  the  estate  out  of  which  the  accumu- 
lation is  to  be  made,  and  to  end  with  the  minority  of  the  persons 
named.  If  there  is  a  direction  for  an  accumulation  for  a  longer 
period,  the  excess  only  is  void,  (a)    In  Alabama,*^  accumulations 

V.  Brown,  4  De  G.  &  J.  179;  Halford  v.  Stains,  16  Sim.  488;  Wilde  v.  Davis, 
1  Sm.  &  G.  475;  Eyre  v.  Marsden,  2  Keen,  564;  4  Myl.  &  Cr.  4.31;  Edwards 
v.  Tuck,  3  De  G.,  M.  &  G.  40;  Burt  v.  Sturt,  10  Hare,  415;  1  Jarm.  on  Wills, 
292. 

*  Crawley  t'.  Crawley,  7  Sim.  427;  O'Neill  v.  Lucas,  2  Keen,  316;  Morgan 
V.  Morgan,  4  De  G.  &  Sm.  175;  20  L.  J.  Ch.  441;  1  Jarm.  on  Wills,  292. 

»  Rev.  Stat.  (4th  ed.)  p.  135;  [  Real  Property  Law,  1909,  §  62,  IV  Consol. 
Laws  (1909),  p.  3384;  Personal  Property  Law,  1909,  §  16,  IV  Consol. 
Laws  (1909),  p.  2844];  Craig  v.  Craig,  3  Barb.  Ch.  76;  Killam  v.  Allen, 
52  Barb.  605;  Hawley  v.  James,  5  Paige,  480;  Hull  v.  Hull,  24  N.  Y.  647; 
Robinson  v.  Robinson,  5  Lansing,  167;  Williams  v.  Williams,  8  N.  Y.  3.58; 
Kilpatrick  v.  Johnson,  15  N.  Y.  322;  Ha.\tun  v.  Corse,  2  Barb.  Ch.  50S; 
Lang  V.  Ropke,  5  Sandf.  S.  C.  363;  Meserole  v.  Meserole,  1  Hun,  66;  Pray 
V.  Hedgeman,  27  Hun,  603. 

»  Comp.  Laws,  1857,  c.  85,  §§  15-26.    [  Comp.  Laws,  1897,  §  8819.] 

*  Rev.  Stat.  1858,  c.  83,  §§  1.5-26.  [Statutes,  1898,  §  2061.  Limit 
for  charities,  twenty-one  years.] 

s  Comp.  Stat.  1859,  c.  31,  §§  15-26.     [   Rev.  Laws,  1905,  §  3226.] 
6  Code,  1852,  §  1310.     [Civ.  Code,  1907,  §  3410.] 

(a)  Several    other    States    have  ed  the  four  periods  of  t  he  Thellusson 

adopted  the  provisions  of  the  New  Act.   Rev.  Stat.  (1908),  c.  30,  §  155, 

York    statute.      Cal.    Civ.    Code,  enacted  in   1907.     In  Wisconsin  it 

§§  723-725;  Mont.  Civ.  Code  (1907),  has  been  held  that  the  statute  does 

§§4469-4470;  No.  Dak.  Code  (1905),  not  apply  to  income  of  personalty. 

§  4749;  So.  Dak.  Civ.  Code  (1908),  Scott  v.  West,  63  Wis.  529,  573  ei 

§    229;    Burns'    Ind.    Stat.   (1908),  seq.    It  has  been  held  in  New  York 

§   9724,    applying   only    to   income  that  an  accumulation  for  the  benefit 

from  ijersonalty.    Illinois  has  adopt-  of  an  unborn  child,  though  valid  for 

649 


§  399.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

can  go  on  only  for  ten  years,  unless  they  are  for  the  benefit  of  a 
minor  child  in  being  at  the  creation  of  the  trust,  or  at  the  death 
of  the  testator,  in  which  case  they  may  continue  during  its 
minority.  In  Pennsylvania,^  trusts  for  accumulation  cannot  be 
created  for  a  longer  term  than  the  life  or  lives  of  the  grantor  or 
testator,  and  the  term  of  twenty-one  years  from  the  death  of 
such  grantor  or  testator,  and  if  these  limits  are  exceeded,  the 
excess  is  void.  In  the  other  States,  the  common-law  rules,  as 
before  stated,  are  supposed  to  prevail.  The  rule  in  regard  to 
accumulation  is  analogous  to  the  rules  in  regard  to  the  vesting 
of  executory  estates.  At  common  law,  the  same  rule  prevails  in 
both  cases.  In  many  of  the  States,  the  rules  regulating  the 
vesting  of  such  estates  have  been  altered  by  statutes.  AMiether 
the  modification  of  those  rules  by  statute,  without  reference  to 
the  rule  as  to  accumulations,  would  also  alter  the  rule  as  to 
accumulations  in  those  States  does  not  seem  to  have  been 
considered. 

§  399.  Where  there  are  no  statutes  regulating  accumulations, 
a  direction  to  accumulate  a  fund  for  a  charity,  for  a  term  beyond 
the  common-law  limit,  does  not  vitiate  the  gift  for  the  charity,'^ 

1  Purd.  Dig.  1861,  p.  853,  §  9.  [  Brightly's  Purdon's  Dig.  (12th  ed.) 
p.  1833,  §  9.  Exception  in  favor  of  trusts  for  charities.  See  Weinmann's 
Estate,  223  Pa.  St.  508.] 

2  Odell  V.  OdeU,  10  Allen,  1;  but  see  Hillyard  v.  Miller,  10  Penn.  St.  326; 

the  period  of  its  minority,  is  invalid  does  not  prevent  him  from  holding 

for  the  period  preceding  its  birth,  a  reasonable  reserve  of  accumulated 

U.  S.  Trust  Co.  V.  Soher,  178  N.  Y.  surplus  income  for  the  purpose  of 

442.    Under  the  statute  a  direction  providing  for  a  possible  deficiency  of 

to  accumulate  for  the  purpose  of  income.     Spencer  v.  Spencer,  56  N. 

paying  off  existing  mortgages  on  the  Y.  S.  460  (App.  Div.).    Similarly,  it 

trust  property  is  invaUd.    Hafner  v.  has  been  held  in  Pennsylvania  that  a 

Hafner,  71  N.  Y.  S.  1,  62  App.  Div.  temporary    withholding   of    income 

316  (affirmed  171  N.  Y.  633);  Kirk  for  the  purpose  of  providing  a  reserve 

V.  McCann,  101  N.  Y.  S.  1093,  117  fund    in    the   interest    of   judicious 

App.  Div,  56;  Hascall  v.  King,  162  management,  is  not  forbidden  by  the 

N.  Y.  134.     It  has  been  held  that  statute.    Spring's  Estate,  216  Pa.  St. 

where  a  trustee  is  charged  with  the  529. 
duty  of  paying  annuities,  the  statute 

650 


X 


CHAP.  XIII.]  ACCUMULATIONS.  (§  400. 

although  no  Hmit  has  been  determined  by  courts  during  which 
an  accumulation  for  a  charity  may  be  permitted.  It  is  probable 
that  courts  would  take  care  that  no  extraordinary  or  extrava- 
gant term  for  accumulation  should  be  allowed  for  a  future  and 
prospective  good.  But  where  there  are  statutes  against  accu- 
mulations, charities  will  be  governed  by  the  same  rules  unless 
they  are  specially  excepted. •  (a) 

§  400.  In  Bassil  v.  Lister,^  it  was  determined  that  a  direction 
of  a  testator  that  premiums  on  policies  of  insurance  should  be 
paid  out  of  his  estate,  upon  the  lives  of  his  sons  during  their 
lives,  was  not  a  direction  for  an  accumulation  within  the  prohi- 
bition of  the  statute.  The  case  is  severely  criticised  in  Jarman 
on  Wills;  ^  but  it  would  seem,  that  it  would  not  be  illegal  for  a 
testator  to  direct  the  premiums  to  be  paid  upon  a  life  policy,  if 
the  primary  object  of  such  a  direction  is  not  accumulation,  but 
security  or  safety.  The  question  cannot  arise,  however,  in  the 
absence  of  statutory  provisions  upon  the  subject  of  accumula- 
tions; for  it  can  be  an  accumulation  for  one  life  only  in  being  at 
the  time,  and  such  an  accumulation  is  legal  by  the  rules  of  the 
common  law. 

Philadelphia  v.  Girard,  45  id.  1.  [  St.  Paul's  Church  v.  Att.  Gen.,  164  Maes. 
188,  203;  Codman  v.  Brigham,  187  Mass.  309;  Brigham  v.  Brigham  Hospital, 
134  Fed.  513;  In  re  Swain,  [1905]  1  Ch.  669.  See  contra,  Brooks  v.  Belfast, 
90  Me.  318,  323.] 

1  Martin  v.   Margham,   14  Sim.  230. 

»  Bassil  V.  Lister,  9  Hare,  177. 

»  1  Jarm.  294-297. 

(o)  See  Wharton  v.  Masterman,  or  a  corporation,  for  whose  sole  ben- 
[1895]  A.  C.  186,  where  it  was  held  efit  an  accumulation  is  directed  may 
that  a  legatee,  whether  an  individual     terminate  it. 


661 


§  401.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 


CHAPTER  XIV. 

GENERAL  PROPERTIES  AND  DUTIES  OF  THE  OFFICE  OF  TRUSTEE. 

§  401.    A  trustee,  having  accepted  the  office,  is  bound  to  discharge  its  duties. 

§  402.    He  cannot  delegate  his  authority  except  to  agents  in  proper  cases. 

§  403.  Not  responsible  if  he  follow  directions  in  employing  agents. 

§  404.  Where  agents  must  be  employed. 

§  405.  When  responsible  for  agents  and  attorneys. 

§  406.  When  not  responsible. 

§  407.  Difference  of  Uability  in  law  and  equity. 

§  408.  Trustees  responsible  for  all  mischiefs  arising  from  delegating 

discretionary  powers. 
§  409.  Employing  agents  or  attorneys  may  not  be  a  delegation  of 

authority  or  discretion. 
§  410.    A  sale  or  devise  of  the  trust  estate  not  a  delegation  of  the  trust. 
§  411.    Several  trustees  constitute  but  one  collective  trustee. 
§§  412,  413.       When  they  must  all  act  and  when  not. 
§  414.    As  to  the  survivorship  of  the  office  of  trustee. 
§  415.    General  rule  as  to  liability  for  cotrustees. 
§  416.  May  make  themselves  liable,  where  otherwise  they  would  not 

be. 
§  417.  Trustees  must  use  due  diligence  in  all  cases,  or  they  will  be 

liable  for  cotrustees. 
§  418.  Cases  of  a  want  of  due  care  and  prudence. 

§  419.  In  case  of  collusion  or  gross  negligence,  a  trustee  will  be  liable 

for  acts  of  cotrustees. 
§  420.  When  cotrustees  are  liable  for  others  upon  sales  of  real  estate 

under  a  power. 
§  420  a.        Indemnifying  of  one  trustee  by  another. 
§  421.  As  to  liability  of  coe.xecutors  for  the  acts  of  each  other. 

§  422.  An  executor  must  not  enable  his  coexecutor  to  misapply 

the  funds. 
§  423.  When  executors  must  all  join  they  are  not  liable  for  each 

other's  acts;  but  they  must  use  due  diligence. 
§  424.  An  executor  must  not  allow  money  to  remain  under  the 

sole  control  of  his  coexecutor. 
§  425.  Executors  and  administrators  governed  by  the  same  rules. 

§  426.  Rule  where  coexecutors  or  cotrustees   give    joint   bonds  of 

security  of  the  administration  of  the  estate. 
§  427.    Trustees  can  make  no  profit  out  of  the  office. 

652 


^ 


CHAP.  XIV.]   TRUSTEE  CANNOT  RENOUNCE  HIS  TRUST.  [§  401. 

§  428.  Cannot  buy  up  debts  against  the  PHtate  or  ce3tui  que  trust  at 

a  profit. 
§  429.  Cannot  make  a  profit  from  the  use  of  trust  funds  in  business, 

trade,  or  speculation. 
§  430.  All  persons  holding  a  fiduciary  relation,  subject  to  the 

same  rule. 
§  431.  All  persons  holding  fiduciary  relations  to  an  estate,  subject 

to  the  same  rule. 
§  432.  Can  receive  no  profit  for  serving  in  their  professional  characters 

a  trust  estate. 
§  433.  Trustees  can  set  up  no  claim  to  the  trust  estate,  and  ought  not 

to  betray  the  title  of  the  cestui  que  trust. 
§  434.    In  England,  upon  failure  of  heirs  to  the  cestid  que  trust,  trustee  may 

hold  real  estate  to  liis  own  use. 
§  435.    Speculative  questions. 
§  436.    In  the  United  States,  the  interest  of  the  cestui  que  trust  in  real  estate 

escheats. 
§  437.    So  it  does  in  England  and  the  United  States  in  personalty. 
§  437  a.    Contracts  of  trustee. 
§  437  b.     Signature  of  trustee. 

§  401.  A  TRUSTEE,  having  accepted  a  trust,  cannot  renounce 
it.  If  any  one  undertakes  an  office  for  another,  he  is  bound  to 
discharge  its  duties,  and  he  cannot  free  himself  from  liabihty  by 
mere  renunciation.  He  must  be  discharged  by  a  court  of  equity, 
or  by  a  special  power  in  the  instrument  of  trust,  or  by  the  con- 
sent of  all  parties  interested  in  the  estate,  if  they  are  sui  juris: 
if  all  the  parties  are  not  sui  juris,  recourse  must  be  had  to  a 
court  of  equity,  in  the  absence  of  any  provisions  in  the  instru- 
ment of  trust.^  Nor  can  a  party  qualify  his  own  acts.  Where 
he  is  named  trustee  or  executor,  and  acts  in  behalf  of  certain 
parties  in  the  management  of  the  estate,  he  cannot  protest  that 
he  is  not  acting  generally,  and  that  he  will  not  be  responsible 
for  any  mismanagement.  On  the  contrary,  if  he  so  acts,  and 
his  coexecutors  accept  the  trust,  and  commit  a  devastavit,  he 

'  Post,  §§  920-922;  Doyle  v.  Blake,  2  Sch.  &  Lef.  245;  Chalmer  i-.  Bradly, 
1  J.  &  W.  68;  Read  t;.  Truelove,  Amb.  417;  Manson  !'.  Baillie,  2  Macq. 
H.  L.  Cas.  80;  Switzer  v.  Skiles,  3  Gilm.  (111.)  529;  Diefendorf  v.  Spraker, 
6  Seld.  246;  Shepherd  v.  McEvers,  4  Johns.  Ch.  136;  Matter  of  Jones,  4 
Sandf.  615;  Cruger  v.  Halliday,  11  Paige,  314;  Courtenay  i'.  Courtenay, 
3  Jo.  &  Lat.  529.    [  Speakman  v.  Tatem,  48  N.  J.  Eq  136.] 

G53 


§  402.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

will  be  equally  responsible.^  Even  if  a  trustee  gives  a  bond  for 
the  due  execution  of  the  trust,  and  in  a  suit  upon  the  bond  is 
obliged  to  pay  the  full  amount,  he  is  not  discharged  from  the 
trust,  nor  does  the  trust  property  vest  in  him  beneficially.  He 
is  still  a  trustee,  and  must  account  for  the  trust  property,  and 
all  the  income  and  profits.  Courts  of  equity,  however,  in  such 
cases  have  power  to  do  equity;  and  the  trustee  would  not  be 
ordered  to  convey  the  trust  property  without  repayment  to  him 
of  the  money  paid  out  on  his  bond.^  Until  the  trustee  has  been 
discharged,  the  cestui  que  trust  may  require  the  due  execution  of 
the  trust;  and  where  the  trustee  will  not  take  proper  steps  to 
enforce  a  claim  against  a  debtor,  he  may  file  a  bill  against  the 
trustee  for  the  execution  of  the  trust  and  to  obtain  the  proper 
order  for  using  the  trustee's  name  or  for  obtaining  a  receiver  to 
use  the  trustee's  name.^  Trustees  will  be  held  to  great  strict- 
ness in  their  dealings  with  the  estate,  but  courts  will  treat  them 
leniently  when  they  act  in  good  faith."*  A  trustee  is  bound  to 
exercise  ordinary  care  and  judgment,  and  it  is  no  excuse  for 
him  that  he  did  not  possess  them ;  by  accepting  a  trust,  whether 
gratuitous  or  not,  he  undertakes  that  he  does  possess  and  will 
exercise  them.^  (a) 

§  402.  The  office  of  trustee  is  one  of  personal  confidence,  and 
cannot  be  delegated.  If  a  person  takes  upon  himself  the  man- 
agement of  property  for  the  benefit  of  another,  he  has  no  right 
to  impose  that  duty  on  others,  and  if  he  does  he  will  be  responsi- 

»  Lowry  v.  Fulton,  9  Sim.  123;  Doyle  v.  Blake,  2  Sch.  &  Lef.  231;  Read 
V.  Truelove,  Amb.  417;  Urch  v.  Walker,  3  Myl.  &  Cr.  702;  Van  Horn  v. 
Fonda,  5  Johns.  Ch.  403. 

'  Moorcroft  v.  Dowding,  2  P.  Wms.  314.  See  Barker  v.  Barker,  14 
Wis.  131;  Saunders  v.  Webber,  39  Cal.  287. 

s  Sharpe  v.  San  P.  Ry.  Co.,  L.  R.  8  Ch.  597. 

*  Crabb  v.  Young,  92  N.  Y.  56. 

•  Hun  V.  Cary,  82  N.  Y.  65. 

(a)  "Trustees  are  not  bound  to     Per    Kekewich,    J.,    in    Budgett   p. 
do  anything  dishonest  or  immoral     Budgett,  [1895]  1  Ch.  202,  215. 
for  the  sake  of  their  cestui  que  trust." 

654 


€1L\P.  XIV.]  DELEGATION    OF    AUTHORITY.  [§  402. 

ble  to  the  cestui  que  trust,  to  whom  he  owes  the  duty.'  There- 
fore, if  a  trustee  confides  his  duties  or  the  trust  fund  to  the  care 
of  a  stranger,-  or  to  his  attorney,^  or  even  to  his  cotrustee  or 
coexecutor,'*  he  will  be  personally  responsible.  But,  before  this 
responsibility  can  arise,  the  trustee  must  have  accepted  the 
office.  Where  a  person  named  executor  received  a  bill  by  post, 
and  passed  it  over  to  a  coexecutor  who  had  accepted  the  trust, 
it  was  held  that  the  act  might  be  considered  as  the  act  of  a 
stranger,  and  did  not  impose  any  responsibility.^  So  where  a 
coexecutor  collected  money,  and  paid  it  to  a  banker,  who  was 
also  his  coexecutor,  and  whom  the  testator  employed  as  his 
banker,  he  was  held  excused  for  trusting  the  same  person  as  his 
coexecutor  whom  the  testator  trusted  as  his  banker.® 

'  Turner  v.  Corney,  5  Beav.  517;  Taylor  v.  Hopkins,  41  111.  442. 

'  Adams  v.  Clifton,  1  Russ.  297;  Kilbee  v.  Sneyd,  2  Moll.  199;  Hard- 
wick  V.  Mynd,  1  Anst.  109;  Venablcs  v.  Foyle,  1  Ch.  Caa.  2;  Douglaas  v. 
Browne,  Mont.  93;  Ex  parte  Booth,  id.  248;  ^^'alke^  v.  Symonde,  3  Swanst. 
79,  n.  (a);  Char.  Corp.  v.  Sutton,  2  Atk.  40.5;  Wilkinson  v.  Parry,  4  Ruse. 
272;  Hulme  v.  Hulme,  2  Myl.  &  K.  682;  Black  v.  Irwin,  Harp.  L.  411;  Bergcr 
V.  Duff,  4  Johns.  Ch.  368;  Pearson  v.  Jamison,  1  McLean,  199;  Newton  v. 
Bronson,  3  Kern.  587;  Andrew  v.  N.  Y.  Bible  Soc,  4  Sandf.  156;  Niles  v. 
Stevens,  4  Denio,  399;  Beekman  v.  Bonsor,  23  N.  Y.  298;  Wliittlesey  v. 
Hughes,  39  Mo.  13;  Graham  v.  King,  50  Mo.  22;  Howard  i'.  Thornton,  id. 
291;  Bales  v.  Perry,  51  Mo.  449. 

«  Chambers  t;.  Minchin,  7  Ves.  196;  Griffiths  v.  Porter,  25  Beav.  236; 
Ingle  V.  Patridge,  32  Beav.  661;  34  Beav.  411;  Bostock  r.  Hoyer,  L.  R. 
1  Ch.  26;  Ex  parte  Townsend,  1  Moll.  139;  Ghost  v.  ^^■aUer,  9  Beav.  497; 
Turner  v.  Corney,  5  Beav.  115;  Sinclair  v.  Jackson,  8  Cow.  582.  [See 
infra,  §§  409,  441,  aa  to  liability  for  loss  due  to  employment  of  agents.] 

*  Langford  v.  Gascoyne,  11  Ves.  333;  Clough  v.  Bond,  3  Myl.  &  Cr. 
497;  Eaves  v.  Hickson,  30  Beav.  136;  Davis  v.  Spurling,  1  R.  &  M.  66; 
Anon.,  Mos.  .35,  36;  Harrison  v.  Graham,  1  P.  Wms.  241,  n.  (y);  Kilbee 
V.  Sneyd,  2  Moll.  200;  Marriott  v.  Kinnersloy,  Tam.  470;  Thompson  v. 
Finch,  22  Beav.  316;  8  De  G.,  M.  &  G.  560;  Dines  v.  Scott,  T.  &  R.  361; 
Cowell  V.  Gatcombe,  27  Beav.  56S;  Trutch  r.  Lamprell,  20  Beav.  116; 
Ex  parte  Winnall,  3  D.  &  C.  22;  Berger  v.  DufT,  4  Johns.  Ch,  368.  [  Stong'a 
Estate,  160  Pa.  St.  13.    See  infra,  §§  415-419.] 

s  Balchen  v.  Scott,  2  Ves.  Jr.  678. 

•  Churchill  v.  Hobson,  1  P.  Wms.  241;  Chambers  v.  Minchin,  7  Ves. 
198.  And  see  1  P.  Wms.  241,  n.  (y).  [  See  Duckworth  v.  Ocean  Steamship 
Co.,  98  Ga.  193;  Dover  v.  Denne,  3  Ont.  L.  Rep.  664;  Bermingham  v.  Wil- 
cox, 120  Cal.  467.] 

055 


§  404.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

§  403.  So  trustees  are  not  responsible,  if  they  follow  the  direc- 
tions of  the  settlor.  Thus,  where  a  testator  recommended  his 
executors  to  employ  a  person  who  had  been  his  own  agent  and 
clerk,  and  they  employed  him  to  collect  moneys,  and  he  became 
insolvent,  it  was  held  that,  as  the  testator  pointed  out  the  agent 
to  whom  certain  business  might  be  delegated,  the  executors 
were  not  liable  for  the  loss,  if  they  used  due  diligence  to  recover 
the  money.^  So  if  an  executor  pays  over  money  which  he  has  no 
right  to  retain.  Thus  a  testator  appointed  A.,  B.,  and  C.  his 
executors,  and  authorized  A.  to  sell  real  estate  for  certain  pur- 
poses. A.  employed  B.  as  his  agent  to  sell  the  real  estate;  B. 
sold  the  estate  and  paid  the  money  over  to  A.,  who  misapplied 
it;  and  it  was  held  that  B.  received  the  money,  not  as  executor, 
but  as  agent  of  A.,  and  as  A.  had  authority  to  sell,  he  had  a 
right  to  the  money,  and  that  B.  could  not  retain  it,  and  was  not 
responsible  for  it.^ 

§  404.  But  there  are  circumstances  where  the  trustees  must 
employ  agents.  Lord  Hardwicke  said :  "  There  are  two  sorts  of 
necessity,  legal  necessity  and  moral  necessity.  As  to  the  first  a 
distinction  prevails,  \^^le^e  two  executors  join  in  giving  a  dis- 
charge for  money,  and  only  one  of  them  receives  it,  they  are 
both  answerable  for  it;  because  there  is  no  necessity  for  both  to 
join  in  the  discharge,  the  receipt  of  either  being  sufficient;  but 
if  trustees  join  in  giving  a  discharge  and  one  receives,  the  other 
is  not  answerable,  because  his  joining  in  the  discharge  was 
necessary.  Moral  necessity  is  from  the  usage  of  mankind,  if  the 
trustee  acts  prudently  for  the  trust,  as  he  would  have  done  for 
himself,  'and  according  to  the  usage  of  business;'  as  if  a  trustee 
appoint  rents  to  be  paid  to  a  banker  at  that  time  in  credit,  but 
who  afterwards  breaks,  the  trustee  is  not  answerable.  So  in  the 
employment  of  stewards  and  agents;  for  none  of  these  cases  are 
on  account  of  necessity,  but  because  the  persons  acted  in  the 

'  Kilbee  v.  Sneyd,  2  Moll.  199;  Doyle  v.  Blake,  2  Sch.  &  Lef.  239. 
*  Davis  V.  Spurling,  1  R.  &  M.  64;  Tam.  199;  Keane  v.  Roberts,  4  Madd. 
332,  356;  Crisp  v.  Spranger,  Nels   109. 

(356 


N        / 


CHAP.  XIV.]  DELEGATION    OF   AUTUORITY.  [§  404. 

usual  method  of  business."  ^  Other  cases  have  held  that  "  neces- 
sity includes  the  usual  course  of  business,"  ^  as  in  employing  a 
broker  in  making  investments  of  a  class  usually  so  made.^  But 
the  agent  must  not  be  employed  out  of  the  scope  of  his  regular 
business."*  Where  an  executor  in  London  remitted  money  to  an 
executor  in  the  country  to  pay  debts  there  due,  it  was  held  to 
be  a  necessary  transaction  in  the  course  of  business,  and  the 
executor  in  London  was  not  responsible  for  the  loss  of  the 
money  by  his  coexecutor  in  the  country.^  So,  where  A.  and  B. 
were  assignees  of  a  bankrupt,  and  B.  signed  dividend  checks 
and  delivered  them  to  B.  for  his  signature,  and  for  deliver}'  to 
the  creditors,  and  they  were  stolen  from  B.  and  negotiated  at 
the  bank,  it  w^as  held  that  A.  was  not  responsible  for  the  loss,  as 
he  had  delegated  the  checks  to  B.  in  the  necessary  course  of 
the  business.®  So  a  trustee  is  not  called  upon,  in  the  ordi- 
nary course  of  business,  to  take  security  from  the  agent 
or  other  person  whom  he  employs.''  One  trustee  may  em- 
ploy his  cotrustee  as  his  agent,  or   one   trustee  may  act  for 


1  Ex  'parte  Bclchier,  Amb.  219. 

2  Bacon  t;.  Bacon,  5  Vcs.  335;  Clough  v.  Bond,'3  Myl.  &  Cr.  497;  Joy  i\ 
Campbell,  1  Sch.  &  Lef.  341;  Chambers  i-.  Minchin,  7  Ves.  193;  Langford 
V.  Gascoyne,  11  Ves.  33.5;  Davis  f.  Spurling,  1  R.  &  M.  66;  Munch  v.  Cock- 
erell,  5  Myl.  &  Cr.  214;  Hawley  v.  James,  5  Paige,  487;  May  v.  P'razer,  4 
Litt.  391;  Telford  v.  Barney,  1  G.  Greene  (Iowa),  575;  Blight  v.  Schcnck, 
10  Barr,  2S5;  Lews  v.  Reed,  11  Ind.  239;  Mason  v.  Wait,  4  Scam.  132. 
[See  Donaldson  v.  Allen,  182  Mo.  626;  In  re  De  Pothonier,  [1900] 
2  Ch.  529;  Lord  De  Clifford's  Estate,  [1900]  2  Ch.  707;  Finlay  v.  Mer- 
riman,  39  Tex.  56;  hi  re  Weall,  42  Ch.  Div.  C74;  In  re  Brier,  26  Ch.  Div. 
238.] 

3  Speight  V.  Gaunt,  22  Ch.  D.  727,  9  App.  Cas.  1.  [Shepherd  i-.  Harris, 
[1905]  2  Ch.  310.] 

*  Fry  I'.  Tapson,  28  Ch.  D.  268.  [Robinson  r.  Harkin,  [1S96]  2  Ch. 
415;  McCloskey  v.  Gleason,  56  Vt.  264.] 

s  Joy  V.  Campbell,  1  Sch.  &  Lef.  341;  Barrings  v.  Willing,  4  Wash.  C. 
C.  251;  Jones's  App.,  8  Watts  &  S.  147;  State  v.  Guilford,  15  Ohio,  593; 
Deaderick  v.  Cantrell,  10  Yerg.  2.54;  Thomas  i-.  Scruggs,  id.  401 ;  Macrubbin 
V.  Cromwell,  7  G.  &  J.  157. 

«  Ex  parte  Griffin,  2  G.  k  J.  114;  Wackerbath  t-.  Powell,  Buck,  495; 
2G.&  J.  151. 

">  Ex  parte  Bclchier,  Amb.  220. 

VOL.  I.  —  42  ^'^^"i 


§  406.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

the  whole,  within  the  scope  of  those  duties  where  an  agent  may 
be  employed.^  (a) 

§  405.  It  was  held  in  one  case,  that  assignees  were  responsible 
for  the  loss  of  money  by  an  attorney  employed  by  them  to  col- 
lect debts  due  the  estate,  on  the  ground  that  there  was  no  neces- 
sity for  them  to  allow  the  attorney  to  receive  a  shilling  of  the 
money  except  the  costs,  as  he  could  not  give  a  valid  receipt  for 
the  same;  ^  and  Lord  Eldon  was  cited  as  an  authority  for  this. 
Mr.  Lewin  questions  this  case,  and  says  that  trustees  must  not 
allow  money  to  remain  in  the  hands  of  an  attorney,  but  that  the 
authorities  are  doubtful  w^hich  say  that  money  may  not  pass 
through  the  hands  of  an  attorney  in  the  ordinary  course  of 
business.  The  case  is  authority,  however,  thus  far,  that  attor- 
neys cannot  sign  receipts  for  trustees,  and  if  they  authorize 
them  so  to  do,  the  trustees  will  be  responsible  as  for  the  acts  of 
an  agent  improperly  appointed.^ 

§  406.  If  money  is  to  be  transmitted  to  a  distant  place,  a 
trustee  may  do  so  through  the  medium  of  a  responsible  bank,  or 
he  may  take  bills  from  persons  of  undoubted  credit,  payable  at 
the  place  where  the  money  is  to  be  sent;  but  the  bills  must  be 
taken  to  him  as  trustee:  if  he  neglects  these  precautions  he  will 
be  responsible  for  any  loss.'* 

»  Ex  parte  Rigby,  19  Ves.  463;  Abbott  v.  American  Hard  Rubber  Co., 
33  Barb.  579;  Sinclair  v.  Jackson,  8  Cow.  543;  Webb  v.  Ledsom,  1  K.  &  J. 
385;  Leggett  v.  Hunter,  19  N.  Y.  445;  Bowers  v.  Seeger,  3  Watts  &  S.  222. 
[Ubhoff  V.  Brandenburg,  26  App.  D.  C.  3;  Shepherd  v.  Harris,  [1905]  2 
Ch.  310.] 

2  Ex  parte  Townsend,  1  Moll.  149;  Anon.  12  Mod.  560;  Re  Fryer,  3  K. 
&  J.  317.     [  See  infra,  §  409  and  note.] 

»  Lewin  on  Trusts,  208. 

*  Wren  v.  Kirton,  11  Ves.  380;  Ex  parte  Belchier,  Amb.  219;  Routh  v. 

(a)  If  a  testator   empowers  his  guilty   of   gross   negligence  if  they 
trustees  to  appoint  a  factor  to  the  do  not  call  for  such  accounts.    Car- 
estate  who  may  be  one  of  them-  ruthers  i;.  Carruthers,  [1896]  A.  C. 
selves,  but  directs  them  to  require  659. 
annual   accoimts,    the   trustees   are 

658 


CHAP.  XIV.]  CANNOT    DELEGATE    THE   TRUST.  [§  40b. 

§  407.  It  is  saitl  that  there  is  a  difference  in  the  rule,  as 
applied  to  executors  in  a  court  of  law  and  a  court  of  equity. 
Thus,  in  a  court  of  law,  an  executor  will  be  charged  with  all  the 
assets  that  come  to  his  hands  to  be  administered,  and  he  must 
discharge  himself  by  showing  a  legal  administration  of  all  of 
them;  and  he  cannot  discharge  himself  at  law  by  showing  that 
he  intrusted  them  to  another  in  the  ordinary  course  of  business; 
that  he  used  due  caution  and  prudence,  and  reposed  a  reason- 
able confidence  in  such  other  person;  and  that  the  assets  were 
lost  without  negligence  or  default  on  his  part.  Such  a  state  of 
facts  would  not  sustain  a  plea  of  j)Iene  admmistrant  in  a  court 
of  law.  But  a  court  of  equity  would  adjust  the  account  of  the 
executor  upon  equitable  principles.^  A  court  of  probate,  in 
taking  the  account,  would  also  act  upon  equitable  principles.^ 

§  408.  If  a  trust  is  of  a  discretionary  nature,  the  trustee  will 
be  responsible  for  all  the  mischievous  consequences  of  the  del- 
egation, and  the  exercise  of  the  discretion  will  be  absolutely 
void  in  the  substitute.^  Nor  can  a  discretionary  trust  be  del- 
egated to  a  cotrustee.'*  Where  a  sum  of  money  was  given  to 
three  trustees  to  be  distributed  in  charity  in  their  discretion, 
and  they  divided  it  into  three  parts,  and  each  took  control  of  a 
third.  Lord  Hardwicke  said:  " I  am  of  opinion  that  the  trustees 
could  not  divide  the  charity  into  three  parts,  and  each  trustee 
nominate  a  third  absolutely,  because  the  determination  of  the 
propriety  of  every  object  was  left  by  the  testator  to  the  discre- 
tion of  all  the  executors."  ^ 

Howell,  3  Ves.  566;  Massey  v.  Banner,  1  J.  &  W.  247;  Knight  v.  Plymouth,  1 
Dick.  120;  3  Atk.  480.    [  See  Dunn  v.  Dunn,  137  N.  C.  533.] 

'  Cross  V.  Smith,  7  East,  246;  Jones  t'.  Lewis,  2  Ves.  241;  Poole  v.  Mun- 
day,  103  Mass.  174;  Upson  v.  Badeau,  3  Bradf.  Sur.  13. 

*  Ibid. 

'  Alexander  v.  Alexander,  2  Ves.  643;  Att.  Gen.  v.  Scott,  1  Ves.  413; 
Wilson  V.  Dennison,  Amb.  S2;  7  Bro.  P.  C.  296;  Bradford  v.  Belfield,  2  Sim. 
264;  Hitch  v.  Leworthy,  2  Hare,  200;  Doe  v.  Robinson,  24  Miss.  688;  Single- 
ton V.  Scott,  11  Iowa,  589;  Person  v.  Jamison,  3  McLean,  69,  197. 

*  Crewe  v.  Dicken,  4  Ves.  97. 

*  Att.  Gen.  v.  Gleg,  1  Atk.  356;  ante,  §  287. 

059 


409. 


GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 


§  409.  But  it  must  be  observed  that  the  appointment  of  an 
attorney,  proxy,  or  agent  is  not  necessarily  a  delegation  of  the 
trust.  The  trustee  must  act  at  times  through  attorneys  or 
agents,  and  if  he  determines  in  his  own  mind  how  to  exercise 
the  discretion,  and  appoints  agents  or  instruments  to  carry 
out  his  determination,  he  cannot  be  said  to  delegate  the  trust, 
even  though  deeds  or  other  instruments  are  signed  by 
attorneys  in  his  name,  (a)  So,  if  he  gives  instructions  to  his 
attorneys  and  agents  how  to  act,  it  cannot  be  said  to  be  a 
delegation  of  the  trust.^ 

1  Att.  Gen.  v.  Scott,  1  Ves.  413;  Ex  parte  Rigby,  19  Ves.  463;  Ord  v. 
Noel,  5  Madd.  498;  Sinclair  v.  Jackson,  8  Cow.  582;  Hawley  v.  James, 

(a)  Thus  a  trustee  with  a  dis-  sonable  conduct  in  such  cases  is  the 
cretionary  power  of  sale,  having  ex-  care  which  "an  ordinarily  prudent 
ercised  this  discretion  as  to  the  time  man  would  exercise  in  the  manage- 
and  terms  of  sale,  may  delegate  to  an  ment  of  his  own  property."  Don- 
agent  the  execution  and  delivery  of  aldson  v.  Allen,  182  Mo.  626,  650; 
the  deed.  Smith  v.  Swan,  2  Tex.  Civ.  Speight  v.  Gaunt,  9  App.  Cas.  1,  22 
App.  563;  Keim  v.  Lindley,  30  A.  Ch.  Div.  727;  see  also  §441  and  note. 
1063,  1074  (N.  J.  Ch.  1895);  54  N.  J.  But  a  trustee  who  has  "unnecessa- 
Eq.  418  (on  appeal.)  Similarly,  rily"  turned  trust  funds  over  to  an 
when  the  donee  of  a  power  of  ap-  agent  for  management  is  Uable  to 
pointment  by  will  executes  it  by  de-  make  good  the  loss  due  to  the  latter's 
vising  the  property  to  executors  dishonesty.  Low  v.  Gemley,  18 
with  directions  to  sell  and  divide  the  Can.  Sup.  685. 
proceeds  among  the  appointees  in  In  the  Enghsh  case  of  Speight  v. 
certain  named  shares,  it  has  been  Gaunt,  9  App.  Cas.  1,  where  trust 
held  that  nothing  had  been  delegated  funds  had  been  embezzled  by  a  bro- 
but  a  ministerial  duty.  McNeile's  ker  employed  by  the  trustees,  the 
Estate,  217  Pa.  St.  179;  Papin  v.  rule  was  stated  to  be,  "that  al- 
Piednoir,  205  Mo.  521.  though  a  trustee  cannot  delegate  to 

A  trustee  who  has  used  reason-  others    the    confidence    reposed    in 

able    care    in    the    selection    of   his  himself,  nevertheless,  he  may  in  the 

agents  for  the  performance  of  min-  administration   of  the   trust   funds 

isterial   duties   and   who   has   been  avail  himself  of  third  parties,  such 

reasonably    prudent    in    his    super-  as  bankers,  brokers,  and  others,  if 

vision  of  the  acts  of  the  agent  is  not  he  does  so  from  a  moral  necessity,  or 

required  to  make  good  to  the  trust  in  the  regular  course  of  business.    If 

estate  a  loss  or  damage  caused  by  a  loss  to  the  trust  fund  should  be 

the  negligence  or  dishonesty  of  the  occasioned  thereby,  the  trustee  will 

agent,  provided  the  duties  delegated  be    exonerated    unless    some    negli- 

were  such  as  the  trustee  could  prop-  gence  or  default  of  hie  had  led  to 

erly  delegate.    The  standard  of  rea-  that  result." 

660 


X 


CHAP.  XIV.]  CANNOT    DELEGATE    THE    TRUST.  [§  411. 

§  410.  It  has  been  before  stated  that  a  sale  or  devise  of  the 
trust  estate  by  the  trustee  will  not  be  a  delegation  or  communi- 
cation of  a  discretionary  trust  to  the  vendee  or  devisee,  unless 
the  original  instrument  of  trust  contemplated  and  authorized 
such  an  act  by  vesting  the  trust  or  power  annexed  to  the  estate 
in  the  trustee  and  his  assigns  or  devisees.' 

§411.  Where  a  settlor  vests  his  property  in  several  cotrustees, 
they  all  form,  as  it  were,  one  collective  trustee;  therefore  they 
must  perform  their  duties  in  their  joint  capacity,^  even  in  making 
a  purchase.^  In  law  there  is  no  such  person  known  as  an  acting 
trustee  apart  from  his  cotrustees.  All  who  accept  the  office  are 
acting  trustees.  If  any  one  trustee  who  has  accepted  refuses  to 
join  in  the  proposed  act,  or  is  incapable,  the  others  cannot  pro- 
ceed without  him,  but  an  application  must  be  made  to  the 
court."*  (a)    So,  if  trustees  bring  suits,  or  defend  suits  in  court, 

5  Paige,  487;  Newton  v.  Bronson,  3  Kern.  587;  Blight  v.  Schenck,  10  Barr, 
285;  Ex  parte  Belcliier,  Amb.  219;  Bacon  v.  Bacon,  5  Ves.  335;  Clough  v. 
Bond,  3  Myl.  &  Cr.  497;  Lewis  v.  Reed,  11  Ind.  239;  Mason  v.  Wait,  4  Scam. 
132;  Powell  v.  Tuttle,  3  Comst.  396;  Bales  v.  Perry,  51  Mo.  449. 

1  Ante,  §  340;  Saunders  v.  Webber,  39  Cal.  287. 

2  Smith  V.  Wildman,  37  Conn.  384;  Wliite  v.  Watkins,  23  Mo.  423;  Ex 
parte  Griffin,  5  G.  <fe  J.  116;  Shook  v.  Shook,  19  Barb.  63;  De  Peyster  v. 
Ferrers,  11  Paige,  13;  Franklin  v.  Osgood,  14  Johns.  560;  Cox  r.  Walker, 
28  Maine,  504;  Hill  v.  Josselyn,  13  Sm.  &  M.  597;  Crewe  v.  Dicken,  4  Ves. 
97;  Fellows  v.  Mitchell,  1  P.  Wms.  83;  2  Vem.  516;  Churchill  v.  Hobson, 
id.  241;  Chambers  v.  Minchin,  7  Ves.  198;  Leigh  v.  Barry,  3  Atk.  584; 
Belchier  v.  Parsons,  Amb.  219;  Ex  parte  Rigby,  19  Ves.  463;  Webb  v.  Led- 
sam,  1  K.  &  J.  385;  Latrobe  v.  Tiernan,  2  Md.  Ch.  4S0;  Vandever's  App., 
8  Watts  &  S.  405;  Sinclair  v.  Jackson,  8  Cow.  544;  Ridgeley  v.  Johnson,  11 
Barb.  527;  Austin  t'.  Shaw,  10  Allen,  552;  King  v.  Stone,  6  Jolins.  Ch.  323 
Powell  V.  Tuttle,  3  Comst.  396;  Sherwood  v.  Read,  7  Hill,  431.  [  Winslow 
V.  B.  &  O.  R.  Co.,  188  U.  S.  646;  Ubhoff  v.  Brandenburg,  26  App.  D.  C.  3 
Hoach  Lumber  Co.  v.  Weeks,  123  Ga.  336;  Carr  v.  Hertz,  54  N.  J.  Eq 
127,  700;  Tarlton  v.  Gilsey,  37  A.  467  (N.  J.  Ch.  1897);  Poole  v.  Anderson 
80  Md.  454;  1  Ames  on  Trusts  (2d  ed.)  512  n.] 

»  Holcomb  I'.  Holcomb,  3  Stockt.  281. 

*  Smith  V.  Wildman,  37  Conn.  384;  Doyley  v.  Sherratt,  2  Eq.  C&s.  Ab. 
742;  Re  Cong.  Church  v.  Smithwick,  1  W.  N.  196;  Scruggs  v.  Driver,  31 

(a)  It  seems  well  to  note  an  im-  where  a  trustee  ignores  his  cotrustee 
portant    difference    between    cases     in  attempts  to  dispose  of  or  bind 

661 


§412. 


GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 


they  must  act  jointly,  (a)  and  they  should  all  employ  the  same 
counsel.  If  they  sever  in  their  defence  and  incur  extra  costs, 
they  might  be  compelled  to  bear  them  personally. 

§  412.  A  receipt  for  money,  in  the  absence  of  special  direc- 
tions in  the  instrument  of  trust,  must  be  signed  by  all  the  trus- 
tees, or  it  will  be  invalid.^  Where  the  trustees  are  numerous,  the 
court  generally  inserts  an  order  that  moneys  may  be  paid  to  two 
or  more.^  This  rule  is,  however,  relaxed  in  the  United  States; 
and  it  has  been  held  that  payment  of  a  mortgage  to  one  of  two 
trustees  is  a  valid  payment.^  So  all  the  trustees  must  join  in 
proving  a  debt  against  a  bankrupt ;  *  but,  under  special  cir- 
cumstances, the  court  may  order  the  proof  to  be  made  by  one 

Ala.  274;  Matter  of  Wadsworth,  2  Barb.  Ch.  381;  Matter  of  Mechanics' 
Bank,  id.  446;  Burrill  v.  Shell,  2  Barb.  457;  Wood  v.  Wood,  5  Paige,  596; 
Davis  V.  McNeil,  1  Ired.  Eq.  344;  Matter  of  Van  Wyke,  1  Barb.  Ch.  565; 
Guyton  v.  Shane,  7  Dana,  498;  Ridgeley  v.  Johnson,  11  Barb.  527;  Ex  parte 
Belchier,  Amb.  219.  [  Fritz  v.  City  Trust  Co.,  76  N.  Y.  S.  625,  72  App.  Div. 
532  (affirmed  173  N.  Y.  622)]. 

1  Walker  v.  Symonds,  3  Swanet.  63;  Hall  v.  Franck,  11  Beav.  519. 

2  Att.  Gen.  v.  Brickdale,  8  Beav.  223. 
»  Bowers  v.  Seeger,  8  Watts  &  S.  222. 

*  Ex  parte  Smith,  1  Dea.  191;  M.  &  A.  506;  Ex  parte  Phillips,  2  Dea. 
334. 


trust  property  and  cases  where  he 
assumed  to  act  as  agent  for  his  co- 
trustees, since  the  necessary  partici- 
pation of  all  the  trustees  may  be 
by  agency  of  one.  The  attempted 
disposal  in  cases  of  the  former  kind 
is  entirely  nugatory.  Thus  a  lease 
of  trust  property  signed  by  only  one 
of  two  trustees  is  inoperative  and 
cannot  be  ratified,  since  it  does  not 
purport  to  bind  the  other  joint  ten- 
ant. Winslow  V.  B.  &  O.  R.  Co.,  188 
U.  S.  646.  The  same  is  true  of  an 
assignment  of  a  bond  and  mortgage 
by  less  than  the  whole  number  of 
trustees.     Fritz  v.  City  Trust  Co., 

662 


76  N.  Y.  S.  625,  72  App.  Div.  532 
(affirmed  173  N.  Y.  622);  Hosch 
Lumber  Co.  v.  Weeks,  123  Ga.  336; 
Tarlton  v.  Gilsey,  37  A.  467  (N.  J. 
Eq.  1897).  But  if  the  attempted  dis- 
posal is  made  in  the  names  of  all,  it 
becomes  a  question  whether  or  not 
the  trustee  who  acted  or  signed  was 
properly  authorized  to  act  as  agent 
for  his  cotrustees,  or,  in  the  absence 
of  original  authority,  whether  or  not 
the  cotrustees  have  ratified  or 
adopted  the  act.  Ubhoff  v.  Branden- 
burg, 26  App.  D.  C.  3. 

(a)   McGeorge  v.  Bigstone   Gap. 
Imp.  Co.,  88  F.  R.  599. 


CHAP.  XIV.J  THE    TRUST    A    JOINT   OFFICE.  [§  413. 

or  more,  even  when  payment  must  be  made  to  all  the  trustees.^ 
A  different  rule  prevails  in  regard  to  bank  stocks,  for  the  bank 
recognizes  only  the  legal  title,  and  at  law  one  joint-tenant  may 
receive  moneys;  so  one  trustee  may  receive  dividends  upon  pub- 
lic stocks,^  or  the  rents  of  real  estate,  unless  the  tenant  has  had 
notice  not  to  pay  to  one;  ^  but  all  the  trustees  must  join  in  con- 
veying such  stocks  or  in  executing  a  conveyance  of  land,^  or 
pledging  the  trust  property.*  A  deed  of  land  executed  by  one 
trustee  does  not  convey  his  share,  as  in  the  case  of  ordinary 
joint-tenants.®  Where  a  deed  was  executed  by  two  of  three 
trustees,  the  burden  was  put  upon  the  purchaser  to  prove  that 
the  other  trustee  was  dead.^  It  has  been  said,  however,  that  in 
a  case  of  necessity,  and  after  considerable  time,  the  concurrence 
of  a  cotrustee  may  be  presumed  in  some  transactions.^  A 
banker  may  require  checks  to  be  signed  by  one  only,  or  by 
all  the  trustees.  But  if  trustees  place  money  at  a  banker's  in 
such  manner  that  one  of  their  number  can  withdraw  it  in  his 
sole  name,  all  the  trustees  will  be  liable  in  case  of  a  loss  under 
such  an  arrangement.^  (a) 

§  413.  In  the  case  of  a  public  trust,  where  there  are  several 
trustees,  the  act  of  the  majority  is  held  to  be  the  act  of  the  whole 

1  Ibid. 

2  Williams  v.  Nixon,  2  Beav.  472. 

'  Williams  i;.  Nixon,  2  Beav.  472;  Townley  v.  Sherborne,  Bridg.  35; 
Gouldsworth  v.  Knight,  11  M.  &  W.  337;  Husband  v.  Davis,  1  C.  B.  645. 
See  Webb  v.  Ledsam,  1  K.  &  J.  385;  Mendes  v.  Guedalla,  2  John.  &  H.  259. 
[  Dyer  v.  Riley,  51  N.  J.  Eq.  124.] 

*  Ibid.;  Morville  v.  Fowle,  144  Mass.  109,  113.  [  Hosch  Lumber  Co.  v. 
Weeks,  123  Ga.  336.] 

6  Ham  V.  Ham,  58  N.  H.  70. 

*  Sinclair  v.  Jackson,  8  Cow.  543.  [  Chapin  t;.  First  Univ.  Soc,  8  Gray, 
580.] 

^  Ridgeley  v.  Johnson,  11  Barb.  527;  Learned  v.  Welton,  40  Cal.  339; 
Burngarner  v.  Coggswell,  49  Mo.  259.     [See  supra,  §  411,  note  a.] 

*  Vandever's  App.,  8  Watts  &  S.  405. 
'  Townley  t^.  Sherborne,  Bridg.  35. 

(a)  But  see  infra,  §  415,  note,  aa  "necessity"  of  such  an  arrange- 
to  exceptions  in  case  of  the  business     ment. 

663 


§  413.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

number;  ^  but  the  act  of  the  majority  must  be  strictly  within 
the  sphere  of  their  power  and  duty.^  \Vhen  a  special  power  is 
given  to  trustees,  it  cannot  be  exercised  by  a  majority  only :  all 
must  join.^  If  a  settlement  declares  that,  on  the  death  or  resig- 
nation of  a  trustee,  the  surviving  trustees  shall  appoint  his 
successor,  all  the  surviving  trustees  must  join  in  the  appoint- 
ment."* Where  the  trustees  are  numerous,  as  in  the  case  of  a 
charity,  the  court  may  direct  that  a  majority  shall  form  a 
quorum.  Private  trusts,  where  the  rule  prevails  that  all  must 
join,  cannot  be  affected  by  these  principles,  or  by  any  agree- 
ments that  may  be  made  by  the  parties.^  But  an  instrument  of 
trust  may  contain  express  directions  that  the  trust  shall  be 
administered  according  to  the  will  of  the  majority  of  the  trus- 
tees, in  which  case  the  minority  will  be  compelled  to  give  effect  to 
the  determinations  of  the  majority.^  (a)  vSo  if  the  power  is  given 
to  either  of  two  trustees.^  So  trustees  are  bound  to  concur  in 
every  merely  ministerial  act  necessary  for  the  execution  of  the 
trust;  and  if  they  refuse,  they  may  be  compelled  by  order  of 
the  court.  But  where  it  is  a  mere  matter  of  personal  discretion, 
the  court  cannot  interfere,  unless  a  cotrustee  refuses  to  act  from 
a  corrupt  or  selfish  motive.^    But  a  majority  of  trustees  cannot 

1  Wilkinson  v.  Malin,  2  Tyr.  544;  Perry  v.  Shipway,  1  Gif.  1;  4  De  G. 
&  J.  353;  Att.  Gen.  v.  Shearman,  2  Beav.  104;  Att.  Gen.  v.  Cuming,  2  Y. 
&  C.  Ch.  139;  Younger  v.  Welham,  3  Swanst.  180;  Att.  Gen.  v.  Scott,  1  Ves. 
413;  Wilson  v.  Dennison,  Arab.  82.    [  See  Bank  v.  Mt.  Tabor,  52  Vt.  87.] 

2  Ward  V.  Hipwell,  3  Gif.  547;  Sloo  v.  Law,  3  Blatch,  66,  459. 
»  Re  Cong.  Church  v.  Smithwick,  1  W.  N.  196. 

*  Ibid. 

5  Swale  V.  Swale,  22  Beav.  585;  State  v.  Lord,  31  L.  J.  Ch.  391. 

•  Att.  Gen.  v.  Cumings,  2  Y.  &  C.  Ch.  139;  Taylor  i;.  Dickinson,  15  Iowa, 
483. 

^  Taylor  v.  Dickinson,  15  Iowa,  486. 

8  Clarke  v.  Parker,  19  Ves.  1;  Tomlin  v.  Hatfield,  12  Sim.  167;  Goulds- 

(a)  In  New  Hampshire  it  has  petent  to  act  in  all  cases,  unless 
been  provided  by  statute  that,  the  instrument  or  authority  creat- 
"  When  more  than  one  trustee  is  ing  the  trust  shall  otherwise  pro- 
required  to  execute  a  trust,  a  ma-  vide."  Laws  of  1901,  c.  2;  Ladd 
jority  of  the  trustees  shall  be  com-  v.  Ladd,  74  A.  1045,  (N.  H.  1909). 

664 


CHAP.  XIV.]  SURVIVORSHIP    OF    THE    TRUST.  [§  414. 

deprive  one  of  their  iuiml)er  of  his  right  urul  interest  in  the  trust 
property.' 

§  414.  A  hare  authority,  committeri  to  several  persons,  cease.s 
upon  the  death  of  one;  but  if  the  authority  is  coupled  with  an 
interest,  it  passes  to  the  survivors.^  The  committee  of  a  luna- 
tic's estate  are  mere  protectors  without  any  interest,  and  the 
death  of  one  extinguishes  the  oflice.^  An  executorship  survives, 
for  the  joint  executors  have  an  interest  in  the  estate.''  So  tes- 
tamentary guardianship  survives,  as  such  guardians  have  an 
authority  over  the  estate.^  So  cotrustees  have  an  authority 
coupled  with  an  interest  in  the  legal  title  of  the  estate,  and  the 
office  is  impressed  with  the  quality  of  survivorship.^  If  land  is 
given  to  two  trustees  in  trust  to  sell,  and  one  dies,  the  other  may 
sell,  as  he  holds  the  legal  title  in  the  land,  and  the  office  of  trus- 
tee.^ (a)    Otherwise,  the  precaution  taken  by  a  settlor  to  guard 

worth  V.  Knight,  11  M.  &  W.  337;  Burrill  v.  Sheil,  2  Barb.  457;  Matter  of 
Mechanics'  Bank,  id.  446. 

1  Meth.  Ep.  Church  v.  Stewart,  27  Barb.  553. 

*  Co.  Litt.  113  a;  Eyre  v.  Shaftsbury,  2  P.  Wms.  108,  121,  124;  Att. 
Gen.  V.  Gleg,  1  Atk.  356;  Arab.  584;  Mansell  v.  Vaughn,  Wilm.  49;  Butler 
V.  Bray,  Dyer,  189b;  Peyton  v.  Bury,  2  P.  Wms.  628.  See  §  286.  [See 
infra,  §  491  et  seq.] 

»  Ex  -parte  Lyne,  t.  Talb.  143. 

*  Adams  v.  Buckland,  2  Vem.  514;  Hudson  v.  Hudson,  t.  Talb.  129. 

'  Eyre  v.  Shaftsbury,  2  P.  Wms.  102.  But  if  joint  guardians  are  ap- 
pointed by  the  court,  the  death  of  one  destroys  the  guardianship.  Brad- 
shaw  V.  Bradshaw,  1  Russ.  528;  Hall  v.  Jones,  2  Sim.  41. 

8  Hudson  V.  Hudson,  t.  Talb.  129;  Co.  Litt.  113  a;  Att.  Gen.  t-.  Gleg, 
Arab.  585;  Billingsley  v.  Mathew,  Toth.  168;  GwiUiams  v.  Rowoll,  Hard. 
204;  Stewart  t;.  Peters,  10  Mo.  755;  Butler  v.  Bray,  Dyer,  189  b;  Dominick 
V.  Sayre,  3  Sandf.  555;  Belmont  v.  O'Brien,  2  Kern.  394;  De  Peyster  v.  Fer- 
rers, 11  Paige,  13;  Moses  v.  Murgatroyd,  1  Johns.  Ch.  119;  Shook  v.  Shook, 
19  Barb.  653;  Gregg  v.  Currier,  36  N.  H.  200;  Powell  v.  Knox,  16  Ala.  ;i64; 
Parsons  v.  Boyd,  20  Ala.  112;  Leggett  v.  Hunter,  19  N.  Y.  445;  Aubuchon 
V.  Lory,  23  Mo.  99;  Barton  i;.  Tunnell,  5  Harr.  182;  Smith  v.  McConnell,  17 
111.  135;  Hopper  v.  Adee,  3  Duer,  235;  Britton  v.  Lewis,  8  Rich.  Eq.  271. 

^  Warburton  v.  Sandys,  14  Sim.  622;  Watson  v.  Pearson,  2  Exch.  594; 

(a)  So  too  where  only  one  of  the  Draper  v.  Montgomery,  95  N.  Y.  S. 
three   named   as   trustees   qualifies.     904,  108  A  pp.  Div.  63. 

C65 


§  415.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

his  estate,  by  increasing  the  number  of  trustees,  would  be  futile; 
for  the  death  of  one  of  them  might  result  in  defeating  his  whole 
trust.  Where  the  trust  was  to  raise  £2000  out  of  the  testator's 
estate,  by  sale  or  otherwise  at  the  discretion  of  the  trustees,  who 
should  invest  the  same  in  their  own  names  upon  trust,  one  of 
the  trustees  died  and  the  other  sold ;  and  Vice-Chancellor  Wood 
held  that  the  survivor  could  make  a  good  title.  He  said:  "I 
find  a  clear  estate  in  the  vendor,  and  a  clear  duty  to  perform. 
Is  it  to  be  said  that  the  sale  is  a  breach  of  trust,  because  the  co- 
trustee is  dead?  If  I  were  to  lay  down  such  a  rule,  it  would 
come  to  this,  that  when  an  estate  is  vested  in  two  or  more  trus- 
tees, to  raise  a  sum  by  sale  or  mortgage,  you  must  come  into 
this  court  on  the  death  of  one  of  the  trustees."  ^  The  survivor- 
ship of  the  trust  will  not  be  defeated,  because  the  settlement 
contains  a  power  for  restoring  the  original  number  of  trustees 
by  new  appointment,^  unless  there  is  something  in  the  instru- 
ment that  specially  manifests  such  an  intention.^  Where  an  act 
of  Parliament  declared  that  "survivors  should,  and  they  were 
thereby  required"  to  appoint  new  trustees,  the  court  expressed 
an  opinion  that  the  clause  was  not  imperative,  but  simply 
directory.^ 

§  415.  The  general  rule  is,  that  one  trustee  shall  not  be 
responsible  or  liable  for  the  acts  or  defaults  of  his  cotrustee. 
This  rule  was  established  in  the  time  of  Charles  the  First,  after 
very  great  consideration  and  consultation  by  the  judges  in  the 
case  of  Townley  v.  Sherborne,^  wherein  it  was  resolved  "that 

Att.  Gen.  V.  Litchfield,  5  Ves.  825;  Att.  Gen.  v.  Cumings,  2  Y.  &  C.  Ch. 
139;  Stater  v.  Wheeler,  9  Sim.  156.     [  See  infra,  §  491  et  seq.] 

1  Lane  v.  Debenham,  11  Hare,  188;  Hind  v.  Poole,  1  K.  &  J.  383. 

2  Doe  V.  Godwin,  1  D.  &  R.  259;  Att.  Gen.  v.  Cuming,  2  Y.  &  C.  Ch. 
139;  Jacobs.  Lucas,  1  Beav.  436;  Warburton  v.  Sandys,  14  Sim.  622;  Hall 
V.  Dewes,  Jac.  193;  Att.  Gen.  v.  Floyer,  2  Vem.  748;  Townsend  v.  Wilson, 
1  B.  &  A.  608. 

*  Foley  V.  Wontner,  2  J.  &  W.  245;  Jacob  v.  Lucas,  1  Beav.  436. 

*  Doe  V.  Godwin,  1  D.  &  R.  259.  And  see  Att.  Gen.  v.  Locke,  3  Atk. 
166;  Stamper  v.  Millar,  id.  212;  Rex  v.  Flockwood,  2  Chit.  252. 

*  Townley  v.  Sherborne,  Bridg.  35;  3  Lead.  Cas.  Eq.  718,  and  notes; 
Bowers  v.  Seeger,  8  Watts  &  S.  222;  Sinclair  v.  Jackson,  8  Cow.  543;  Van- 

666 


CiL\I>.  XIV.]  WHEN    LIABLE    FOR    COTRUSTEES.  [§  415. 

where  lands  or  leases  were  conveyed  to  two  or  more  upon  trust, 
that  one  of  them  receives  all  or  the  most  part  of  the  profits,  and 
after  dyeth  or  decayeth  in  his  estate,  his  cotrustee  shall  not  be 
charged  or  compelled  in  chancery  to  answer  for  the  receipts  of 
him  so  dying  or  decayed,  unless  some  practice,  fraud,  or  evil 
dealing  appear  to  have  been  in  them  to  prejudice  the  trust; /or 
they  being  by  law  joint-tenants,  or  tenants  in  common,  everj'  one 
by  law  may  receive  either  all  or  as  much  of  the  profits  as  he  can 
come  by;  it  is  no  breach  of  trust  to  permit  one  of  the  trustees  to 
receive  all  or  the  most  part  of  the  profits;  it  falling  out  many 
times  that  some  of  the  trustees  live  far  from  the  lands,  and  are 
put  in  trust  out  of  other  respects  than  to  be  troubled  with  the 
receipt  of  the  profits.  But  his  lordship  and  the  said  judges  did 
resolve,  that  if,  upon  the  proofs  or  circumstances,  the  court 
should  be  satisfied  that  there  had  been  any  dohis  malus,  or  any 
e\'il  practice,  fraud,  or  ill  intent  in  him  that  permitted  his  com- 
panion to  receive  the  whole  profits,  he  should  be  charged  though 
he  received  nothing."  And  the  same  doctrine  has  been  acted 
upon  from  that  day  to  this.^  Connivance,  co-operation,  per- 
mission, acquiescence,  or  participation  will  bring  liability ;  -  and 
ignorance  of  the  default  of  a  cotrustee  if  it  results  from  neglect 
is  no  excuse,  as  where  one  trustee  collects  a  fund  and  keeps  it 
without  reinvestment,  the  other  trustees  may  be  liable.^  (a) 

dever's  App.,  8  Watts  &  S.  405.  And  see  Leigh  t'.  Barry,  3  Atk.  584;  Anon. 
12  Mod.  560;  Taylor  v.  Benham,  5  How.  233;  Ochiltree  v.  Wright,  1  Dev. 
&  B.  Eq.  336;  Ray  v.  Doughty,  4  Blackf.  115;  Jones's  App.,  8  Watts  &  S. 
143;  Peters  v.  Beverly,  10  Peters,  532;  1  How.  134;  Taylor  v.  Roberts,  3  Ala. 
86;  State  v.  Guilford,  18  Ohio,  509;  Latrobe  v.  Tiernan,  2  Md.  Ch.  4S0; 
Worth  V.  McAden,  Dev.  &  B.  Eq.  109;  Boyd  v.  Boyd,  3  Grat.  114;  Glenn  v. 
McKira,  3  Gill,  366;  Stell's  App.,  10  Penn.  St.  149;  Banks  v.  Wilkes,  3  Sandf. 
Ch.  99.    And  see  Royall  v.  McKenzie,  25  Ala.  363. 

»  Ibid.  [  Bruen  v.  Gillet,  115  N.  Y.  10;  Purdy  v.  Lynch,  145  N.  Y.  462; 
Fesmire's  Estate,  134  Pa.  St.  67,  83;  Graham's  Estate  (Xo.  1),  218  Pa.  St. 
344;  Colbum  v.  Grant,  16  App.  D.  C.  107;  181  U.  S.  601;  Litzenberger'a 
Estate.  85  Hun,  512;  Laurel  County  Court  v.  Trustees,  93  Ky.  379.] 

*  Hinson  t'.  Williamson,  74  Ala.  ISO;  Knight  i'.  Haynie,  id.  542. 

»  Richards  v.  Seal,  2  Del.  Ch.  266.    [  Fesmire's  Estate,  134  Pa.  St.  67, 83.] 

(a)  In  the  administration  and  it  is  usually  impracticable  for  every 
management  of  the  affairs  of  a  trust     trustee   to   actually    participate   in 

mi 


§416. 


GENERAL   DUTIES    OF   TRUSTEES. 


CHAP.  XIV. 


§  416.    In  the  same  case  of  Townley  v.  Sherborne,  it  was 
determined  that  if  the  trustees  joined  in  signing  a  receipt  for 


every  act.  To  some  extent  they 
may  delegate  to  each  other  the  mere- 
ly ministerial  duties  of  management, 
and  each  is  entitled  to  rely  upon  the 
honesty  and  prudence  of  the  other 
unless  he  has  notice  of  facts  which 
should  lead  him  to  distrust  the  other. 
On  the  other  hand,  a  trustee  cannot 
escape  the  responsibility  for  the 
proper  management  and  the  safety 
of  the  trust  property  by  remaining 
passive  and  allowing  his  cotrustee  to 
have  the  control  and  management  of 
the  property.  A  trustee's  habiUty 
for  losses  due  to  the  dishonesty  or 
culpable  mismanagement  of  his  co- 
trustee must  depend  largely  upon 
the  circumstances  of  each  case,  and, 
except  where  he  has  delegated  some 
positive  duty  requiring  the  exercise 
of  his  discretion,  depends  upon 
whether  or  not  he  has  acted  in  the 
matter  with  the  caution  and  pru- 
dence which  a  reasonable  man  would 
exercise  in  the  conduct  of  his  own 
affairs.  He  is  neither  "an  insurer  of 
the  trust  funds  against  the  possi- 
bility of  loss,  nor  a  surety  for  his  co- 
trustee." Fesmire's  Estate,  134  Pa. 
St.  67,  83;  Bermingham  v.  Wilcox, 
120  Cal.  467;  In  re  Gasquoine, 
[1894]   1   Ch.  470. 

Liability  for  acts  of  his  cotrustee 
in  which  he  has  not  participated  and 
which  he  has  not  sanctioned  rests 
upon  neglect  of  some  duty  which  has 
made  the  loss  possible.  Graham's 
Estate,  218  Pa.  St.  344;  Colbum  v. 
Grant,  16  App.  D.  C.  107;  181  U.  S. 
601;  BarroU  v.  Foreman,  88  Md.  188; 
Bruen  v.  Gillet,  11.5  N.  Y.  10;  Dover 
V.  Denne,  3  Ont.  L.  Rep.  664;  Shep- 
herd V.   Harris,    [190.5]  2  Ch.   310; 

668 


Speight  1^.  Gaunt,  9  App.  Cas.  1. 
See  also  infra,  §  848. 

Where  funds  for  investment  have 
come  into  the  hands  of  one  trustee, 
the  other  has  the  duty  of  seeing  for 
himself  that  they  have  been  prop- 
erly invested,  and  if  he  fails  to  do  so 
he  is  liable  for  a  loss  made  possible 
by  his  negligence.  He  is  not  pro- 
tected in  taking  the  cotrustee's  word 
that  he  has  properly  invested  the 
funds.  Thompson  v.  Finch,  8  De  G., 
M.  &  G.  560;  Bermingham  v.  Wilcox, 
120  Cal.  467;  Beatty's  Estate,  214 
Pa.  St.  449;  Fesmire's  Estate,  134 
Pa.  St.  67,  83;  Strong's  Estate,  160 
Pa.  St.  13;  Robinson  v.  Harkin, 
[1896]  2  Ch.  415.  So  also  of  neglect 
to  ascertain  whether  or  not  a  co- 
trustee has  properly  deposited  to  the 
credit  of  the  trust  account  a  large 
sum  which  has  been  paid  to  him. 
Wynne  v.  Tempest,  [1897]  W.  N.  43. 

It  is  sometimes  said  that  a  trustee 
who  "unnecessarily"  does  any  act 
by  which  trust  funds  are  transferred 
from  the  joint  possession  of  all  to 
the  sole  possession  of  one  is  respon- 
sible for  a  resulting  misappropria- 
tion by  the  latter,  but  the  word 
"  vmnecessarily "  is  not  to  be  taken 
in  its  literal  sense.  It  has  been  said 
that  an  act  "is  unnecessary  when 
done  outside  the  usual  course  of 
business  pertaining  to  the  subject," 
and  that  "the  true  question  is,  tak- 
ing into  consideration  all  the  facts 
and  circumstances,  has  the  trustee 
employed  such  prudence  and  dili- 
gence in  the  discharge  of  his  duties 
as  in  general  men  of  average  pru- 
dence and  discretion  would  under 
like  circumstances  employ  in  their 


CHAP.  XIV 


WHEN    LIABLE    FOR   COTRUSTEES. 


[§  41G. 


money,  they  should  each  be  responsible  for  it.'  (a)     But  where 
the  administration  of  a  trust  is  vested  in  several  trustees,  they 


•  Townloy  v.  Sherborne,  Bridg.  35;  Spalding  v.  Shalmer,  1  Vem.  303; 
Sadler  t-.  Hobbs,  2  Bro.  Ch.  114;  Bradwell  i-.  Catchpole,  cited  3  Swanst. 
78,  note  (a);  Fellowes  v.  Mitchell,  2  Vem.  .516. 


own  affairs?"  Purdy  v.  LjTich,  145 
N.  Y.  4G2.  In  the  cited  case  where 
three  trustees  had  the  duty  of  paying 
out  trust  funds  to  a  large  number  of 
beneficiaries  and  two  of  them  al- 
lowed the  third  to  have  the  custody 
of  the  funds  and  intrusted  him  with 
paying  them  out,  the  court,  applying 
the  foregoing  test,  held  that  the  two 
were  not  liable  for  misappropria- 
tions of  the  one  to  whom  they  had 
left  control. 

Similar  language  was  used  in 
Shepherd  v.  Harris,  [1905]  2  Ch.  310, 
where  the  dishonest  trustee,  who  was 
a  broker,  obtained  exclusive  control 
of  the  trust  funds  in  the  course  of 
his  employment  as  a  broker  in  the 
sale  of  certain  trust  securities  for  the 
purpose  of  purchasing  certain  others. 
As  the  usual  business  precautions 
were  taken  and  as  the  defaulting 
trustee  was  a  broker  of  good  stand- 
ing at  the  time,  the  innocent  trustee 
was  held  not  to  be  liable.  See  also 
In  re  Gasquoine,  [1894]  1  Ch.  470. 

Allowing  a  cotrustee  to  have  the 
custody  of  non-negotiable  securities 
and  to  collect  and  pay  over  the  in- 
come to  the  persons  entitled  has  been 
held  not  such  negligence  as  will  ren- 
der a  trustee  liable  to  make  good  the 
default  of  the  cotrustee  in  paying 
over  the  income.  Dj^er  v.  Riley,  51 
N.  J.  Eq.  124;  Fesmire's  Estate,  134 


Pa.  St.  67,  83.  See  also  Colbum  v 
Grant,  10  App.  D.  C.  107,  181  U. 
S.  601. 

It  has  been  held  that  a  trustee 
who  has  no  cause  to  suspect  that  his 
cotrustee  is  dishonest,  is  not  liable 
for  the  latter's  misappropriation  of 
unregistered  negotiable  bonds  which 
were  kept  in  a  place  of  deposit  to 
which  either  trustee  had  access  with- 
out the  other.  In  re  Halstead,  89 
N.  Y.  S.  806,  95N.  Y.  S.  1131.  But 
the  innocent  trustee  has  been  held 
liable  to  make  good  his  cotrustee's 
misappropriations  of  such  securities 
when,  after  receiving  notice  of  a 
misuse  of  the  securities  and  compel- 
ling their  return  to  the  place  of  de- 
posit, he  took  no  steps  to  prevent  a 
similar  misuse,  other  than  to  exact  a 
promise  from  the  delinquent  trustee. 
Matter  of  Howard,  97  N.  Y.  S.  23, 
110  App.  Div.  61  (affirmed  185  N.  Y. 
539);  In  re  Adams'  Estate,  221  Pa. 
St.  77.  See  also  Matter  of  Wester- 
field,  63  N.  Y.  S.  10,  48  App.  Div. 
542.  And  the  negligence  in  such  a 
case  has  been  held  to  be  a  "willful" 
breach  of  trust.  Matter  of  Howard, 
ubi  supra. 

It  has  also  been  held  that  a  trus- 
tee is  negligent  in  allowing  a  co- 
trustee an  opportunity  to  collect  a 
note  after  the  latter  has  become  in- 
solvent.    Darnaby  v.  Watts,  21  S. 


(a)  In  view  of  later  decisions  it 
seems  doubtful  if  much  should  usu- 
ally turn  upon  mere  receipt  of  the 


trust  funds.  See  Purdy  «'.  LvTich, 
145  N.  Y.  462;  Bruen  t;.  Gillet,  115 
N.  Y.  10;  see  also  note  a,  §  415. 

069 


§  416.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

must  all  join  in  signing  a  receipt  for  the  principal  or  capital  sum 
of  the  trust  fund,  and  it  is  now  established  that  a  trustee  who 
joins  in  the  receipt  for  conformity,  but  without  receiving  any  of 
the  money,  shall  not  be  answerable  for  the  misapplication  of  the 
money  by  his  cotrustee  who  receives  it;  as  it  would  be  tyranny 
to  punish  a  trustee  for  an  act  which  the  nature  of  his  office  com- 
pelled him  to  do.^  But  in  such  case  the  burden  is  on  the  trustee 
to  prove  that  his  acknowledgment  of  the  receipt  of  the  money 
was  merely  for  conformity,  and  that  in  fact  he  received  none  of 
the  money,  and  that  his  cotrustee  received  it  all.^    If  there  is 

»  In  re  Freyer,  3  K.  &  J,  317;  Brice  v.  Stokes,  11  Ves.  324;  3  Lead.  Cas. 
Eq.  730;  Harden  v.  Parsons,  1  Eden,  147;  Westley  v.  Clarke,  id.  359;  Heaton 
V.  Marriott,  cited  Pr.  Ch.  173;  Ex  parte  Belchier,  Amb.  219;  Leigh  v.  Barry, 
3  Atk.  584;  Fellowes  v.  Mitchell,  1  P.  Wms.  81;  Gregory  v.  Gregory,  2  Y. 
&  C.  316;  Sadler  v.  Hobbs,  2  Bro.  Ch.  117;  Chambers  v.  Minchin,  7  Ves. 
198;  Shipbrook  v.  Hinchinbrook,  16  Ves.  479;  Harrison  v.  Graham,  3  Hill's 
MS.  239,  cited  1  P.  Wms.  241;  Carsey  v.  Barsham,  cited  1  Sch.  &  Lef.  344; 
Anon.  Mose.  35;  Ex  parte  Wackerbath,  2  G.  &  J.  151;  Kip  v.  Deniston,  4 
Johns.  23;  Jones's  App.,  8  Watts  &  S.  147;  Irwin's  App.,  35  Penn.  St.  294; 
Sterrett's  App.,  2  Penn.  419;  Wallis  v.  Thornton,  2  Brock.  434;  Monell  v. 
Monell,  5  Johns.  Ch.  283;  Deaderick  v.  Cantrell,  10  Yerg.  264;  Aplyn  v. 
Brewer,  Pr.  Ch.  172;  Churchill  v.  Hodson,  1  P.  Wms.  241;  Att.  Gen.  v.  Ran- 
dell,  7  Bacon,  Ab.  184;  Murrell  v.  Cox,  2  Vem.  173;  Terrell  v.  Mathews, 
11  L.  J.  (n.  8.)  Ch.  31;  McMurray  v.  Montgomery,  2  Swanst.  374;  Griffin 
f.  Macauley,  7  Grat.  476;  Worth  v.  McAden,  1  Dev.  &  B.  Eq.  199;  Stowe 
V.  Bowen,  99  Mass.  194. 

2  Brice  v.  Stokes,  11  Ves.  324;  Scurfield  v.  Howes,  3  Bro.  Ch.  95,  note 
(8);  Chambers  v.  Minchin,  7  Ves.  186;  Monell  v.  Monell,  5  Johns.  Ch.  394; 
Hall  V.  Carter,  8  Ga.  388;  Manahan  v.  Gibbons,  19  Johns.  427;  Martmdale 
t.  Picquot,  3  K.  &  J.  317;  Cottam  v.  Eastern  Counties  Ry.  Co.,  1  John.  & 
H.  243. 

W.   333    (Ky.    1893).     The  rule  is  tion  has  so  changed  as  to  make  it 

stated  as  follows  in  the  last  cited  unsafe  for  him  to  control  the  estate, 

case:    "Although  it  is  a  well-estab-  it  is  the  duty  of  the  trustee,  upon 

lished  general  rule  that  one  trustee  being  informed  of  these  conditions, 

is  not  responsible  for  the  waste  of  to  take  prompt  action  to  secure  the 

his  cotrustee,  it  is  equally  well  set-  estate     against     the     apprehended 

tied  that  if  the  trustee  connives  at  waste  or  misappropriation;  for  it  is 

the  waste  or  misappropriation  of  his  well  settled  that  a  trustee  is  respon- 

cotrustee    or  has  reason  to  believe  sible  for  all  loss  by  his  associate, 

that  he  will  waste  or  misappropriate  caused  by  his  actual  or  constructive 

the  trust  estate,  or  that  his  condi-  negligence  or  connivance." 

670 


CHAP.  XrV.]  WHEN    LIABLE    FOR    COTRUSTEES.  [§  417. 

no  evidence  upon  this  point,  all  the  trustees  who  join  in  sign- 
ing the  receipt  will  be  held  responsible  in  solidu,  on  the  ground 
that  the  acknowledgment  in  the  receipt  is  prima  facie  evidence 
of  the  facts  stated.'  At  law  the  receipt  is  conclusive  evidence 
and  estops  the  trustee  from  denying  that  he  received  any  of  the 
money;  ^  but  a  court  of  equity  rejects  estoppels,  and  pursues  the 
actual  truth,  and  will  determine  and  decree  according  to  the 
verity  and  justice  of  the  fact.^  But  if  a  trustee,  signing  a  re- 
ceipt, receives  any  part  of  the  money,  and  it  does  not  appear  how 
much,  he  will  be  answerable  for  the  whole;  as,  where  he  mixes 
his  corn  with  another's  heap,  he  must  lose  the  whole.'* 

§  417.  It  was  said  in  Townley  v.  Sherborne/  that  individuals 
are  sometimes  joined  in  a  trust,  where  it  is  not  expected  that 
they  are  to  take  an  active  part  in  its  management ;  and  it  is  well 
settled  that  each  of  several  trustees  is  not  bound  to  take  upon 
himself  the  active  management  of  every  part  of  a  trust;  and  it 
seems  that  the  management  of  the  whole  may  be  left  to  any  one 
of  the  number.^  So  trustees  may  apportion  their  duties  among 
themselves,  as  where  one  of  two  guardians  accepted  the  trust, 
saying  he  would  take  care  of  the  real  estate,  but  would  have 
nothing  to  do  with  receiving  and  disbursing  money,  which 
duties  the  other  guardian  assumed,  it  was  held  that  the  former 
was  not  answerable  for  the  defaults  of  the  latter."    It  sometimes 

1  Ibid.;  Westley  v.  Clarke,  1  Eden,  359;  Maccubbin  v.  Cromwell,  7  G.  & 
J.  157;  Hengst'a  App.,  24  Penn.  St.  413.  The  answer  of  the  trustee  in 
chancery  would  not  be  sufficient  evidence  unless  responsive  to  the  bill. 
Monell  I'.  Monell,  5  Johns.  Ch.  283;  Maccubbin  v.  Cromwell,  7  Gl.  &  J. 
157.    But  as  parties  are  now  witnesses,  the  rule  is  not  very  important. 

*  Harden  v.  Parsons,  1  Eden,  147. 

»  Ibid.;  Fellowes  v.  Mitchell,  1  P.  Wms.  83. 

«  Ibid. 

»  Bridg.  35. 

•  Ray  V.  Doughty,  4  Blackf.  115;  Ochiltree  v.  Wright,  1  Dev.  &  B.  Eq. 
336;  State  v.  Guilford,  IS  Ohio,  500.  [  Colbum  v.  Grant,  16  App.  D.  C. 
107;  181  U.  S.  601;  Graham's  Estate  (No.  1),  218  Pa.  St.  344;  Purdy  v. 
Lynch,  145  N.  Y.  462;  Fesmire's  Estate,  134  Pa.  St.  67,  83;  Duckworth  t;. 
Ocean  Steam.ship  Co.,  98  Ga.  193;  Dover  v.  Denne,  3  Ont.  L.  Rep.  664.] 

'  Jones's  App.,  8  Watts  &  S.  143.    But  see  Gill  v.  Att.  Gen.,  Hardr.  314. 

671 


§  417.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

happens  that  the  convenience  or  necessities  of  business  require 
the  trust  funds  to  be  in  the  hands  of  one  trustee.  If  a  loss  hap- 
pens from  the  default  of  such  trustee,  the  others  will  not  be  held 
to  answer.  As  where  a  bond  is  to  be  collected  by  one  trustee,  or 
money  is  put  in  the  hands  of  one  to  be  paid  away;  or  where  a 
fund  was  given  to  three  trustees,  one  in  London  and  two  in 
Cornwall,  to  build  an  almshouse  in  London,  it  was  held  that  the 
fund  was  properly  in  the  hands  of  the  trustee  in  London,  and 
that  during  the  construction  of  the  almshouse  the  others  were 
not  answerable  for  the  loss  of  part  of  it  by  his  insolvency.^  The 
same  rule  applies  where  the  shares  of  a  company  are  required 
to  be  in  the  name  of  a  single  individual ;  ^  and  so  where  the 
settlor  appoints  one  of  the  trustees  to  perform  certain  acts,  or 
make  certain  sales,  or  receive  certain  moneys.^  But  if  trustees 
expressly  agree  to  be  answerable  for  each  other,  courts  will  hold 
them  to  their  agreement.^  So  this  power  to  apportion  the 
duties  of  the  trust,  or  the  rule  that  a  trustee  not  receiving  the 
money  shall  not  be  liable  for  the  defaults  of  his  cotrustees,  does 
not  excuse  him  for  not  exercising  a  general  superintendence  and 
care  over  the  trust,  or  for  not  intervening,  if  the  fact  come  to 
his  knowledge  that  the  fund  is  imsafe,  or  that  it  ought  not 
longer  to  remain  under  the  control  of  the  other  trustee.^     Even 

1  Att.  Gen.  v.  Randell,  2  Eq.  Gas.  Ab.  742;  7  Bacon,  Ab.  184;  Glough 
V.  Bond,  3  M.  &  Gr.  497;  Townley  v.  Sherborne,  Bridg.  35;  3  Lead.  Gas. 
Eq.  718,  notes;  Ex  parte  Griffin,  2  G.  &  J.  114;  Bacon  v.  Bacon,  5  Ves.  331; 
Hovey  v.  Blakeman,  4  id.  596;  Williams  v.  Nixon,  2  Beav.  472;  Gurtis  v. 
Mason,  12  L.  J.  (n.  s.)  Gh.  442;  Broadhurst  v.  Balguy,  1  N.  G.  G.  28; 
Hanbury  v.  Kirkland,  3  Sim.  265.  But  see  Gowell  v.  Gatchcombe,  27  Beav. 
568. 

2  Gonsterdine  v.  Gonsterdine,  31  Beav.  331. 

'  Davis  V.  Spurling,  1  R.  &  M.  64;  Paddon  v.  Richardson,  7  De  G.,  M. 
&  G.  563;  Birls  v.  Betty,  6  Madd.  90. 

*  Leigh  V.  Barry,  3  Atk.  583;  Brazer  v.  Glark,  5  Pick.  96;  Towne  v. 
Ammidown,  2  Pick.  535. 

6  Glark  v.  Glark,  8  Paige,  153;  Evans's  Est.  2  Ash.  470.  [  Matter  of 
Howard,  97  N.  Y.  S.  23,  110  App.  Div.  61  (affirmed  185  N.  Y.  539);  In  re 
Adams's  Estate,  221  Pa.  St.  77;  Darnaby  v.  Watts,  21  S.  W.  333  (Ky. 
1893).  Even  when  he  has  been  excluded  from  the  management  and  control 
of  the  trust  property  with  the  consent  of  the  cestui.  Matter  of  Westerfield, 
63  N.  Y.  S.  10,  48  App.  Div.  542.] 

672 


CHAP.  XIV.]  WHEN    LIABLE    FOR    COTRUSTEES.  [§  418. 

a  direct  provision  in  the  deed  of  settlement,  that  trustees  shall 
not  be  liable  for  the  defaults  of  their  cotrustees,  does  not  excuse 
them  from  this  general  care  and  superintendence,  and  from  the 
duty  of  intervening,  if  they  hear  any  fact  tending  to  call  for 
their  intervention;  nor  will  it  justify  them  in  paying  over  the 
money  to  the  sole  credit  of  one  trustee;  and  generally  it  will 
not  authorize  them  to  do  any  acts  which  would  be  a  breach  of 
trust,  if  such  clause  was  not  in  the  deed  or  will.^  While  one 
trustee  is  not  liable  for  the  defaults  of  cotrustees  which  he  has 
not  the  means  of  preventing  or  guarding  against,  yet  he  must 
exercise  due  care  in  the  approval  of  or  acquiescence  in  the  acts 
of  his  associates.^  If  the  trustees  join  in  accounting,  and  hold 
themselves  out,  in  joint  accounts,  as  acting  together  and  as 
jointly  liable,  they  will  be  estopped  to  deny  their  joint  liability 
to  those  who  have  acted  on  a  knowledge  of  such  accounts;  and 
this  would  be  almost  conclusive  evidence  of  a  joint  liability  in 
all  cases.^  So,  if  the  will  makes  them  all  liable  for  the  acts  of 
each,  or  contemplates  the  joint  action  and  joint  liability  of  all, 
they  cannot  excuse  themselves  if  they  accept  the  trust."* 

§  418.  Though  a  trustee  may  join  in  a  receipt  without  receiv- 
ing any  of  the  money,  and  may  not  be  liable  or  answerable  for 

•  Mucklow  V.  Fuller,  Jac.  19S;  Williams  v.  Nixon,  2  Beav.  472;  Leigh 
V.  Barry,  3  Atk.  584;  Dawson  v.  Clark,  IS  Ves.  254;  Underwood  v.  StevenB, 
1  Mer.  712;  Hanbury  v.  Kirkland,  3  Sim.  265;  Langston  v.  Olivant,  Coop. 
33;  Brumridge  v.  Brumridge,  27  Beav.  5;  Rehden  v.  Wesley,  29  id.  213; 
Drosier  v.  Brereton,  15  id.  221;  Fenwick  v.  Greenwell,  10  id.  418;  Pride  v. 
Fooks,  2  id.  430;  Sadler  v.  Hobbs,  2  Bro.  Ch.  114;  Bono  v.  Cook,  McClel. 
168;  13  Price,  332;  Clough  v.  Dixon,  8  Sim.  594;  3  M.  &  Cr.  490;  Dix  v. 
Burford,  19  Beav.  409;  Litchfield  ;-.  \\hite,  3  Selden,  438;  Wilkins  v.  Hogg, 
3  Gif.  116;  10  W.  R.  47;  Worral  v.  Harford,  8  Ves.  8;  Moyle  v.  Moyle,  2  R. 
&  M.  170;  Munch  v.  Cockercll,  9  Sim.  339;  5  M.  &  Cr.  178;  Macdonnel  v. 
Harding,  7  Sim.  176.  [  Matter  of  Howard,  97  N.  Y.  S.  23,  110  App.  Div. 
61  (affirmed  185  N.  Y.  539).]  But  a  testator  can  draw  the  indemnity  clause 
BO  broad  that  cotrustees  will  not  be  liable  even  for  gross  negligence.  Wil- 
kins V.  Hogg,  3  Gif.  116;  10  W.  R.  47.        =  Earie  v.  Eade,  93  N.  Y.  104. 

'  Hengst's  App.,  24  Penn.  St.  413;  Clark's  App.,  18  id.  175;  Duncom- 
mun's  App.,  17  id.  268. 

*  Burrill  v.  Sheil,  2  Barb.  457;  Contee  v.  Dawson,  2  Bland,  204;  Wood 
V.  Wood,  5  Paige,  596;  Weigand's  App.,  28  Penn.  St.  471. 

VOL.  1.  —  43  673 


§  418.]  GENERAL   DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

it,  yet  he  may  be  responsible  for  the  whole,  though  he  receives 
none;  thus,  if  knowing  that  his  cotrustee  has  no  character  or 
credit,  and  is  unfit  to  manage  the  trust  funds,  he  suffers  the 
money  to  be  received  by  him,  or  to  remain  in  his  hands,  he  will 
be  answerable,  as  if  he  receives  it  himself,  on  the  ground  that 
he  has  committed  a  breach  of  trust  in  not  using  due  care  and 
diligence;  ^  and  the  same  rule  will  apply  if  he  suffers  the  money 
to  remain  in  the  hands  of  his  cotrustee,  however  competent  and 
responsible,  longer  than  is  necessary.^  (o)  It  is  also  the  duty  of 
the  trustee  to  ascertain  the  actual  facts,  and  not  rely  upon  the 
bare  assertion  of  his  cotrustee,  in  relation  to  the  condition  of  the 
trust  fund.^  Thus,  where  two  trustees  allowed  their  cotrustee 
to  open  a  box  at  their  banker's  in  which  were  stocks  and  bonds, 
and  he  converted  some  of  the  trust  property  to  his  own  use,  but 
assured  his  cotrustees  that  all  was  right,  they  were  held  to 
answer  for  the  loss,  because  they  had  not  taken  the  pains  to 
ascertain  the  facts,  but  had  relied  upon  the  assertion  of  their 

'  Clark  i;.  Clark,  8  Paige,  153;  Wyman  v.  Jones,  4  Md.  Ch.  500;  Elmen- 
dorf  V.  Lansing,  4  Johns.  Ch.  562;  Ringgold  v.  Ringgold,  1  H.  &  G.  11;  State 
i;.  Guilford,  15  Ohio,  593;  Pirn  v.  Downing,  11  Serg.  &  R.  71;  Evans's  Est., 
2  Ash.  470;  Jones's  App.,  8  Watts  &  S.  147.  But  the  circumstances  must 
be  such  as  would  put  a  reasonable  man  upon  his  guard  in  relation  to  his  own 
property.  Jones's  App.,  8  Watts  &  S.  147;  Lincoln  v.  Wright,  4  Beav.  427; 
Lockwood  V.  Riley,  1  De  G.  &  J.  464.  [  Darnaby  v.  Watts,  21  S.  W.  333 
(Ky.  1893);  In  re  Adams's  Estate,  221  Pa.  St.  77.] 

2  Brice  v.  Stokes,  11  Ves.  319;  Re  Freyer,  3  K.  &  J.  317;  Gregory  v.  Greg- 
ory, 2  Y.  &  C.  313;  Bone  v.  Cook,  McClel.  168;  Thompson  v.  Finch,  22  Beav. 
316;  Lincoln  v.  Wright,  4  Beav.  427. 

3  Thompson  v.  Finch,  22  Beav.  316;  8  De  G.,  M.  &  G.  560;  Hanbury 
«;.  Kirkland,  3  Sim.  265;  Bates  v.  Underbill,  3  Redf.  (N.  Y.)  365.  [  Ber- 
mingham  v.  Wilcox,  120  Cal.  467;  Beatty's  Estate,  214  Pa.  St.  449;  Fesmire's 
Estate,  134  Pa.  St.  67,  83;  Robinson  v.  Harkin,  [1896]  2  Ch.  415.] 

(c)  The  same  is  true  of  securities  word   "necessary"    is   used   in   the 

which  can  be  negotiated  by  one  trus-  sense   of   "advantageous  and   pru- 

tee  without  the  knowledge  of  the  dent."    Purdy  v.  Lynch,  145  N.  Y. 

other.  In  re  Adams's  Estate,  221  Pa.  462;  In  re  Halstead,  89  N.  Y.  S.  806; 

St.  77;  Matter  of  Howard,  97  N.  Y.  95  N.  Y.  S.  1131;   Dover  v.  Denne, 

S.  23,110  App.  Div.  61  (affirmed  185,  3  Ont.  L.  Rep.  664. 
N.  Y.  539).    It  would  seem  that  the 

674 


CHAP.  XIV.]  WHEN    LIABLE    FOR   COTRUSTEES.  [§  418. 

cotrustee.^  So  trustees  must  ascertain  the  condition  of  the 
funds  at  all  times  within  which  a  reasonable  man  should  ascer- 
tain the  condition  of  his  own  property;  as  where  a  mortgage  to 
three  trustees  had  been  paid  off,  and  the  money  came  to  the 
hands  of  one,  and  was  invested  in  bills  and  notes  of  the  East 
India  Company  payable  in  two  years,  and  these  were  paid  into 
the  hands  of  the  same  trustee  to  whom  the  mortgage  had  been 
paid,  and  the  acting  trustee  asked  to  have  the  money  remain  in 
his  hands  on  a  mortgage  to  be  given ;  and  it  so  remained  for  a 
year,  no  mortgage  being  executed,  the  other  trustees  taking  no 
active  steps  for  several  years  to  know  the  actual  condition  of 
the  trust  fund ;  this  was  held  to  be  a  breach  of  trust,  and  they 
were  decreed  to  make  good  the  loss.^  A  trustee  is  bound  to 
inquire  and  ascertain  for  what  purpose  a  cotrustee  desires  the 
money;  what  investments  he  proposes  to  make,  and  what  secur- 
ities he  proposes  to  take,  and  he  must  take  pains  to  see  that 
the  proposed  investments  are  actually  made.^  If  a  trustee  per- 
forms his  duty  in  these  respects,  and  his  cotrustee,  in  spite  of 
these  precautions,  squanders  or  wastes  the  fund,  he  will  not  be 
answerable  therefor.  So  if  the  cotrustee  gets  possession  of  the 
trust  fund  by  a  fraud  or  crime,  the  others  will  not  be  liable.^ 
But  if  a  trustee  receive  any  portion  of  the  funds  from  a  transac- 
tion, he  must  personally  see  to  the  application  of  them:  he 
cannot  pass  them  over  to  his  cotrustee  for  investment  or  dis- 
tribution; and  if  he  do  so,  he  will  be  personally  responsible  for 
the  acts  and  defaults  of  such  cotrustee.^ 

»  Mendos  v.  Guedalla,  2  John.  &  H.  259. 

«  Walker  v.  Symonds,  3  Swanst.  1.   See  Thompson  i-.  Finch,  22  Beav.  326. 

'  Hanbury  v.  Kirkland,  3  Sim.  265;  Broadhurst  v.  Balguy,  1  Y.  &  C. 
Ch.  16;  Thompson  v.  Finch,  22  Beav.  326.  [  Fesmire's  Estate,  134  Pa. 
St.  67,  83;  Beatty's  Estate,  214  Pa.  St.  449;  Stong's  Estate,  160  Pa.  St. 
13;  Bermingham  i-.  Wilcox,  120  Cal.  467;  Thompson  v.  Finch,  8  De  G.,  M. 
&  G.  .560.] 

*  Cottam  ('.  Eastern  Counties  R.  R.  Co.,  1  John.  *t  H.  243;  Mendes  v. 
Guedalla,  2  John.  &  H.  259;  Barnard  v.  Bagshaw,  9  Jur.  (n.  s.)  220;  3  De  G., 
J.  &  S.  355;  Trutch  v.  Lamprell,  20  Beav.  116;  Baynard  v.  Woolley,  id.  583; 
Griffiths  v.  Porter,  25  Beav.  236;  Eager  v.  Barnes,  31  Beav.  579;  Margetts 
V.  Perks,  34  L.  J.  Ch.  109. 

^  Sterrctt's  App.,  2  Penn.  219;  Clark's  .\pp.,  IS  Penn.  St.  175;  Nyce's 

675 


§  419.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

§  419.  In  the  original  case  of  Townley  v.  Sherborne,  it  was 
determined  that  if  there  was  any  dolu^  malus,  or  any  evil  prac- 
tice, or  fraud,  or  ill  intent  in  him  that  permitted  his  companion 
to  receive  the  whole  fund,  he  should  be  charged  that  received 
nothing.^  Thus,  if  one  trustee  stands  by  and  sees  his  cotrustee 
misemploy  or  misapply  the  money;  ^  or  acquiesces  in  the  wrong- 
ful use  of  the  money  by  his  cotrustee;  ^  or  if  a  trustee  acquiesces 
in  his  cotrustee's  retaining  the  money  in  his  hands  unneces- 
sarily; ^  or  if  he  connives  at  a  breach  of  trust  by  his  cotrustee;  ^ 
or  conceals  such  breach;^  or  makes  any  misrepresentation  re- 
specting the  investment  of  the  fund ;  ^  or  if  he  does  any  act  to 
put  the  money  out  of  his  own  control  and  into  the  sole  power 
of  his  cotrustee,  as  by  joining  in  a  conversion  of  the  property 
and  allowing  his  cotrustee  to  receive  and  retain  the  proceeds 
exclusively;  ^  or  if  he  makes  over  the  trust  fund  exclusively  to 
his  cotrustee;  ®  or  executes  a  power  of  attorney  to  him;  ^°  or 

App.,  5  Watts  &  S.  254;  Commonwealth  v.  McAlister,  28  Penn.  St.  480; 
Deaderick  v.  Cantrell,  10  Yerg.  263;  McMurray  v.  Montgomery,  2  Swanst. 
374;  Hughlett  v.  Hughlett,  5  Humph.  453;  Mumford  v.  Murray,  6  Johns. 
Ch.  1;  Ray  v.  Doughty,  4  Blackf.  115;  Worth  v.  McAden,  1  Dev.  &  B.  Eq. 
199;  Graham  v.  Davidson,  2  Dev.  &  B.  Eq.  155;  Sparhawk  v.  Buell,  9  Vt. 
41;  Edmonds  v.  Grenshaw,  14  Peters,  166. 

1  Townley  v.  Sherborne,  Bridg.  35;  Mucklow  v.  Fuller,  Jac.  198. 

2  WilUams  v.  Nixon,  2  Beav.  475. 

3  Booth  V.  Booth,  1  Beav.  125;  Dix  v.  Burford,  19  Beav.  409. 

*  Lincoln  v.  Wright,  4  Beav.  427;  James  v.  Frearson,  1  N.  C.  C.  370; 
Evans's  Est.,  2  Ash.  470;  Pim  v.  Downing,  11  Serg.  &  R.  71;  Styles  v.  Guy, 
1  H.  &  Tw.  523;  1  Mac.  &  Gor.  422;  16  Sim.  230;  Scully  v.  Delany,  2  Ir. 
Eq.  165;  Egbert  v.  Butter,  21  Beav.  560;  West  v.  Jones,  1  Sim.  (n.  s.)  205. 

*  Boardman  v.  Mosman,  1  Bro.  Ch.  68.  ^  Ibid. 
^  Bates  V.  Scales,  12  Ves.  402. 

8  Sadler  v.  Hobbs,  2  Bro.  Ch.  114;  Chambers  v.  Minchin,  7  Ves.  198; 
Hanbury  v.  Kirkland,  3  Sim.  265;  Clough  v.  Bond,  3  M.  &  Cr.  496;  Scur- 
field  V.  Howes,  3  Bro.  Ch.  90;  Shipbrook  v.  Hinchinbrook,  11  Ves.  252; 
Brice  v.  Stokes,  id.  319;  Underwood  v.  Stevens,  1  Mer.  713;  Bradwell  v. 
Catchpole,  3  Swanst.  78,  n.;  Williams  v.  Nixon,  2  Beav.  472;  Broadhurst 
V.  Balguy,  1  N.  C.  C.  16;  Curtis  v.  Mason,  12  L.  J.  (n.  s.)  Ch.  443. 

*  Keble  v.  Thompson,  3  Bro.  Ch.  Ill;  Langford  v.  Gascoyne,  11  Ves. 
333;  French  v.  Hobson,  9  Ves.  103;  Joy  v.  Campbell,  1  Sch.  &  Lef.  341; 
Moses  V.  Levi,  3  Y.  &  C.  359. 

'"  Harrison  v.  Graham,  1  P.  Wms.  241,  n.;  Hewett  v.  Foster,  6  Beav. 

676 


CHAP.  XIV.]  LIABILITY    FOR   COTRUSTEES.  [§  419  a. 

signs  a  draft  or  order,  or  assigns  a  mortgage,  enabling  his  co- 
trustee to  deal  with  the  investments  exclusively;  '  or  if  he 
suffers  the  trust  fund  to  be  invested  in  the  sole  name  of  his 
cotrustee;  ^  or  to  be  paid  into  bank  to  his  sole  credit,^  —  in 
all  these  cases  there  is  an  actual  or  constructive  breach  of  trust, 
which  renders  all  the  trustees  liable  for  any  loss;  and  so  if  a  trus- 
tee does  not  collect  a  debt  due  to  the  estate  from  his  cotrustee.^ 
In  all  cases,  if  a  trustee  becomes  aware  of  any  fact  tending  to 
show  that  his  cotrustee  is  committing  a  breach  of  trust,  or  if  he 
learns  any  fact  endangering  the  trust  fund,  he  must  communi- 
cate it  to  his  cotrustees  or  make  application  to  the  court,^  and 
take  active  measures  to  protect  the  fund,  or  he  will  be  personally 
liable  for  its  loss.  If  a  trustee  himself  receives  the  trust  fund  or 
part  of  it,  and  pays  it  over  to  his  cotrustee,  who  wastes  it,  he 
will  be  liable  for  it; "  and  so  if  he  permits  his  cotrustee  to  receive 
money,  having  notice  that  it  will  be  misapplied,  or  if  he  is  guilty 
of  any  negligence  or  want  of  reasonable  care.^ 

§  419  a.  If  the  trust  instrument  gives  the  ceshii  a  right  to 
appoint  one  to  whom  the  trustee  shall  convey,  this  power  cannot 
be  exercised  by  W'ill,  for  the  will  takes  effect  only  at  the  death 

259;  Monell  v.  Monell,  5  Johns.  Ch.  283;  Pim  v.  Downing,  11  Serg.  &  R. 
66;  Duncommun's  App.,  17  Penn.  St.  268. 

'  Sadler  v.  Hobbs,  2  Bro.  Ch.  114;  Broadhurst  t;.  Balguy,  1  Y.  &  C.  C. 
C.  16. 

2  Walker  v.  Symonds,  3  Swanst.  58. 

'  Clough  V.  Bond,  3  M.  &  Cr.  490. 

*  Mucklow  V.  Fuller,  Jac.  198;  Candler  v.  Tillett,  22  Beav.  254. 

*  Wayman  v.  Jones,  4  Md.  Ch.  506;  Chertsey  v.  Market,  6  Price,  279; 
Powlet  V.  Herbert,  1  Ves.  Jr.  297;  Franco  v.  Franco,  3  Ves.  75;  Walker  v. 
Symonds,  3  Swanst.  71;  Brice  v.  Stokes,  11  Ves.  319;  Olive  v.  Court,  8  Price, 
166;  Att.  Gen.  v.  Holland,  2  Y.  &  C.  699;  Booth  v.  Booth,  1  Beav.  125; 
Williams  v.  Ni,\on,  2  Beav.  472;  Blackwood  v.  Burrows,  2  Conn.  &  Laws. 
477;  Holcomb  v.  Holcomb,  2  Beas.  413;  Crane  v.  Hearn,  26  N.  J.  Eq.  378. 

*  Mumford  v.  Murray,  6  Johns.  Ch.  1;  Monell  v.  Monell,  5  Johns.  Ch. 
283;  Clark  v.  Clark,  8  Paipe,  153;  Ringgold  r.  Ringgold,  1  H.  &  G.  11; 
Glenn  v.  McKim,  3  Gill,  366;  Evans's  Est.,  2  Ash.  470;  Graham  v.  Austin, 
2  Grat.  273;  Graham  v.  Davidson,  2  Dev.  &  B.  Eq.  155.  [  But  see  supra, 
§  417.] 

^  Schenc-k  v.  Schenck,  1  Green,  Ch.  174. 

677 


§  420.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

of  the  cestui,  and  that  very  event  terminates  the  relation  of 
trust  between  the  trustee  and  cestui}  This  reasoning  seems  very 
flimsy,  and  Ukely  to  produce  injustice  if  appHed  to  cases  where 
the  facts  are  different  from  those  in  the  above  case,  where  the 
title  was  held  to  have  passed  by  the  will  itself,  though  not  by 
the  trustee's  deed  in  pursuance  of  the  will. 

§  420.  In  a  few  cases,  it  has  been  held  that,  if  trustees  join 
in  executing  a  power  of  sale,  and  one  receive  the  money,  all 
must  be  held  answerable,  if  it  is  lost  by  the  one  that  receives 
it.^  These  decisions  have  been  founded  upon  the  rule,  that  all 
the  trustees  who  join  in  any  transaction  must  be  responsible  for 
carrying  it  through.  But  they  ignore  the  other  rule,  that  a 
power  must  be  strictly  executed  by  all  the  persons  to  whom  it 
is  given,  and  that  if  a  trustee  joins  in  the  power,  and  signs 
receipts  for  conformity,  but  receives  none  of  the  money,  omits 
no  duty,  and  does  no  act  tending  to  a  breach  of  the  trust,  he 
will  not  be  held  for  a  loss  occasioned  by  a  breach  of  trust  by 
the  other  trustees.  The  great  preponderance  of  authority  is, 
that  a  sale  under  a  power  is  not  different  from  the  execution  of 
a  receipt  for  the  trust  moneys.^  If,  however,  a  proper  invest- 
ment of  the  money  received  under  a  sale  is  once  made,  the  liabil- 
ity of  a  non-acting  trustee  ceases  under  all  the  cases.'*  If  a 
trustee  renounces  the  trust,  he,  of  course,  cannot  be  liable  for  a 
breach  of  the  trust  by  the  other  trustees,  unless  the  trust  fund 

1  Bradstreet  v.  Kinsella,  76  Mo.  63. 

2  Spencer  v.  Spencer,  11  Paige,  299;  Ringgold  v.  Ringgold,  1  H.  &  G. 
11;  Maccubbin  v.  Cromwell,  7  G.  &  J.  1.57;  Deaderick  v.  Cantrell,  10  Yerg. 
263;  Wallace  v.  Thornton,  2  Brocken.  434;  Hauser  v.  Lehman,  2  Ired.  Eq. 
594. 

'  See  ante,  §  416,  note;  Griffin  v.  Macauley,  7  Grat.  476;  Atcheson  v. 
Robertson,  3  Rich.  Eq.  132;  Kip  v.  Deniston,  14  Johns.  23;  Jones's  App., 
8  Watts  &  S.  147;  Boyd  v.  Boyd,  3  Grat.  114.  But  if  a  trustee  not  only 
join  in  the  execution  of  the  power,  but  in  receiving  the  money,  he  must 
keep  it  in  the  joint  names  of  the  trustees  until  invested;  and  he  cannot 
pay  it  over  to  his  cotrustee  without  being  responsible  for  it  if  lost.  Ring' 
gold  V.  Ringgold,  1  H.  &  G.  11;  Glenn  v.  McKim,  3  Gill,  366. 

*  Glenn  v.  McKim,  3  Gill,  366. 

678 


CHAP.  XIV.]  LIABILITY    FOR   COTRUSTEES.  (§  420  a. 

is  in  some  manner  in  his  hands,  and  is  misapplied  by  him.'  So 
the  estate  of  a  deceased  trustee  cannot  be  liable  for  a  breach  of 
trust  by  a  surviving  trustee,  after  the  decease  of  a  cotrustee.^  (a) 
A  distinction  has  been  attempted  between  discretionary  trusts 
and  directory  trusts  as  follows:  it  has  been  said,  that,  in  dis- 
cretionary trusts,  that  is,  where  the  funds  may  be  invested  or 
employed  according  to  the  discretion  of  the  trustees,  a  non- 
acting  trustee  will  not  be  responsible  for  a  misapplication  of  the 
fund  by  a  cotrustee,  unless  he  is  guilty  of  some  fraud  or  negli- 
gence that  amounts  to  a  breach  of  trust,  upon  the  principles 
before  stated;^  but  where  a  will  is  peremptory  that  certain 
investments  shall  be  made  by  the  trustees,  all  the  trustees  will 
be  liable  if  the  directions  of  the  will  are  not  carried  out."*  But 
these  directory  trusts  may  be  executed  by  a  part  of  the  trustees, 
and  the  others  may  join  for  conformity,  without  doing  more 
than  is  absolutely  necessary  to  accomplish  the  trust,  and  there- 
fore these  trusts  fall  within  the  rule,  that  a  trustee  who  signs 
receipts  for  conformity,  and  does  no  more,  is  not  liable  for  a 
breach  of  trust  by  his  cotrustee."  But  if  the  will  expressly  pro- 
vide for  the  joint  action  and  responsibility  of  the  executors  or 
trustees,  it  will  be  binding  upon  all  those  who  assume  the  trust, 
and  render  them  all  liable  for  any  loss  through  the  default  of 
one.® 

§  420  a.   Where  there  are  two  trustees,  and  the  management 
of  the  trust  is  left  to  one,  and  the  acting  trustee  commits  a 

1  Claggett  V.  Hall,  9  G.  &  J.  80. 

2  Brazer  v.  Clark,  5  Pick.  96;  Towne  t;.  Ammidown,  20  Pick.  535.    [  Gra- 
ham's  Estate  (No.  1),  218  Pa.  St.  344;  Re  Palk,  41  W.  R.  28.] 

'  Deaderick  v.  Cantrell,  10  Yerg.  264;  Thomas  v.  Scruggs,  id.  400. 
*  Ibid. 

'  Ante,  §  416,  note. 

«  Weigand's  App.,  28  Penn.  St.  471;  Wood  v.  Wood,  5  Paige,  596;  Con- 
tee  V.  Dawson,  2  Bland,  264;  Burrill  v.  Shell,  2  Barb.  457. 

(a)  If     trustees     have     resigned  they  will  be  liable  for  the  loss  if  the 

with   the  certainty  that   their  sue-  facts  show  that  their  resignation  was 

cessors  will  commit  a  breach  of  trust  for  that   purpose.     Head  r.  Gould, 

which  they  themselves  had  refused  [1898]  2  Ch.  250. 
to  do,  it  has  been  intimated  that 

('.79 


§  421.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

breach  of  trust,  the  passive  trustee  is  not  entitled  to  indemnity 
from  the  acting  trustee,  unless  there  are  some  special  circum- 
stances, as  where  the  acting  trustee  is  solicitor  for  the  trust,  or 
has  derived  a  personal  benefit  from  his  breach  of  trust.^  (a) 

§  421.  Following  the  rule  as  to  cotrustees,  executors  are  gen- 
erally liable  only  for  their  own  acts,  and  not  for  the  acts  of  their 
coexecutors.^    But  while  cotrustees  may  not  be  liable  for  money 

1  Bahin  v.  Hughes,  31  Ch.  D.  390.  [  See  In  re  Linsley,  [1904]  2  Ch. 
785.] 

2  Hargthorpe  i;.  Milforth,  Cro.  Eliz.  318;  Anon.  Dyer,  210  a;  Went.  Ex. 
308;  Williams  v.  Nixon,  2  Beav.  472;  Peters  v.  Beverly,  10  Peters,  532;  1 
How.  134;  Sutherland  v.  Brush,  7  Johns.  Ch.  17;  White  v.  Bullock,  20 
Barb.  91;  Douglas  v.  Satterlee,  11  Johns.  16;  Banks  v.  Wilkes,  3  Sandf. 
Ch.  99;  Moore  v.  Tandy,  3  Bibb,  97;  Fennimore  v.  Fennimore,  2  Green, 
Ch.  292;  Call  v.  Ewing,  1  Blackf.  301;  Williams  v.  Maitland,  1  Ired.  92; 
Kerr  v.  Kirkpatrick,  8  Ired.  Eq.  137;  Clarke  v.  Blount,  2  Dev.  Ch.  51; 
Clarke  v.  Jenkins,  3  Rich.  Eq.  318;  Knox  v.  Pickett,  4  Des.  190;  Kerr  v. 
Water,  19  Ga.  136;  Charlton  v.  Durham,  L.  R.  4  Ch.  433;  McKim 
V.  Aulbach,  130  Mass.  481.  [  Cocks  v.  Haviland,  124  N.  Y.  426;  Nanz  v. 
Oakley,  120  N.  Y.  84.] 

(a)  Although   the  liability  of  a  to  have  special  knowledge.     In  re 

trustee  to  the  cestuis  for  breaches  of  Linsley,  [1904]  2  Ch.  785.    See  also 

trust  which  were  committed  by  his  McCartin  v.  Traphagan,  43  N.  J. 

cotrustee  without  his  actual  partic-  Eq.  323,  334.    Supra,  §  420  a. 
ipation  is  not  that  of  a  surety,  cases  But  in  general  the  courts  will  not 

sometimes  arise  where  one  trustee,  give  indemnity  on  the  ground  that 

though  equally  liable  to  the  cestuis,  one  trustee  was  more  active  in  the 

is  entitled  to  indemnity  from  the  breach  than  the  others  or  was  more 

guilty   cotrustee,  e.  g.,   where   one  to  blame  than  the  others.     Cases 

trustee  has  appropriated  trust  funds  cited  supra.     A  reason  that  is  suf- 

to  his  own  use  without  the  knowl-  ficient  to  entitle  a  trustee  to  indem- 

edge  of  the  other,  who,  however,  is  nity  from  a  cotrustee  would  usually 

liable,  because  his  neglect  of  duty  be  sufficient  to  relieve  him  from  all 

gave  the  other  his  opportunity,  liability  to  the  cestui  for  the  breach. 
Bahin  v.  Hughes,  31  Ch.  Div.  390.  As  to  a  trustee's  right  to  indem- 

A  proper  case  for  indemnity  may  nity  from  a  cestui  who  has  received 

arise  also  where  a  trustee  unwitting-  the  entire  benefit  of  the  breach  of 

ly  participated  in  a  breach  of  trust  trust,  see  infra,  §  848  and  note.    As 

through  his  reliance  upon  the  advice  to  contribution  among  trustees  who 

of  a  solicitor  trustee    in  a  matter  are  jointly  liable,  see  infra,  §  848. 
wherein  the  latter  could  be  expected 

680 


CHAP.  XIV.]  LIABIUTY    OF    COEXECUTORS.  [§  421. 

which  they  did  not  receive,  although  they  joined  in  the  receipt, 
coexecutors  are  always  liable  if  they  join  in  the  receipts,  (a) 
The  reason  is  this:  trustees  7/n/-sf<  join  in  many  acts,  they  having 
for  the  most  part  a  joint  power,  while  executors  have  a  several 
power,  over  the  estate.  Each  executor  has  an  independent 
right  over  the  personal  property  of  his  testator:  he  may  sell 
it,  and  receive  the  purchase-money,  and  give  receipts  in  his  own 
name.  If,  therefore,  an  executor  joins  his  coexecutor  in  signing 
a  receipt,  he  does  an  unmeaning  act,  unless  he  intended  to 
render  himself  jointly  answerable  for  the  money;  and  so  the 
courts  hold,  that  if  an  executor  joins  in  giving  a  receipt  for 
money  he  shall  be  answerable,  whether  he  received  any  of  it  or 
permitted  his  coexecutor  to  receive  the  whole.^  So,  if  an  exec- 
utor joins  in  executing  a  power  of  sale,  given  in  the  will,  he  will 
be  responsible  for  the  appropriation  of  the  proceeds,  though  his 
coexecutor  received  all  the  money.^    An  attempt  has  been  made 

»  Aplyn  V.  Brewer,  Pr.  Ch.  173;  Murrill  v.  Cox,  2  Vem.  560;  Ex  parte 
Belchicr,  Amb.  219;  Leigh  v.  Barry,  3  Atk.  584;  Harrison  v.  Graham,  1 
P.  Wms.  241;  cited  Darwell  v.  Darwell,  2  Eq.  Cas.  Ab.  456;  Gregory  v. 
Gregory,  2  Y.  &  C.  316;  Hall  v.  Carter,  8  Ga.  388;  Monell  v.  Monell,  5 
Johns.  Ch.  283;  Monahan  v.  Gibbons,  19  Johns.  427;  Sterrett's  App.,  2 
Penn.  219;  Jones's  App.,  8  Watts  &  S.  143;  Johnson  v.  Johnson,  2  Hill, 
Eq.  290;  Clarke  v.  Jenkins,  3  Rich.  Eq.  318.  [  See  Fesmire  v.  Shannon,  143 
Pa.  St.  201.] 

*  Ochiltree  v.  Wright,  1  Dev.  &  B.  Eq.  336;  Hauser  v.  Lehman,  2  Ired. 
Eq.  594;  Mathews  v.  Mathews,  1  McMul.  Eq.  410;  Johnson  i-.  Johnson, 
2  Hill,  Eq.  277;  Murray  v.  Montgomery,  2  Swanst.  374;  Deaderick  v.  Can- 
treU,  10  Yerg.  263. 

(a)  "At  the  present  day,  execu-  paid  his  ancestor's  debts  and  took 

tors  and  administrators  hold  the  as-  liis  property.    The  executor  did  not 

sets   of   the    estate   in    a   fiduciary  stop  into  the  heir's  shoes,  and  come 

capacity.     Their  rights  and  liabili-  fully  to  represent  the  person  of  the 

ties,  in  respect  of  the  fund  in  their  testator  as  to  personal  property  and 

hands,  are  very  like  those  of  trustees,  liabilities  until  after  Bracton  wrote 

But  this  way  of  regarding  them  is  his  great   treatise  on  the  Laws  of 

somewhat  modem."    Judge  Holmes,  England."     Ibid.,   in   12  Harv.   L. 

in  an  article  in  9  Harv.  L.  Rev.,  Rev.  446.    See  also  Walker  v.  Walk- 

p.  42,  which  reviews  instances  of  this  er's  Ex'r,  88  Ky.  615,  625;  3  Wil- 

change  in  the  law.     "The  executor  Hams  on  Executors,  (Am.  ed.)  395, 

originally  was  nothing  but  a  feoffee  note, 
to  uses.    The  heir  was  the  man  who 

681 


§  422.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

to  break  down  these  distinctions  between  executors  and  trustees, 
and  to  establish  the  rule,  that  no  intention  to  be  jointly  answer- 
able can  be  inferred  from  the  mere  fact  of  signing  a  receipt  with- 
out receiving  any  part  of  the  money  either  separately  or  jointly.^ 
And  it  appears  now  to  be  well  settled,  that  if  the  joint  receipt  is 
purely  nugatory,  and  no  funds  pass  upon  it  into  the  hands  of 
either  executor,  a  coexecutor  will  not  be  liable.^  So  far  the  doc- 
trine of  Lord  Northington  in  Westerly  v.  Clarke  has  been  agreed 
to,  though  the  case  itself  seemed  to  go  further.^  Lord  Har- 
court,  in  Churchill  v.  Hobson,^  started  another  distinction,  that 
executors  who  joined  in  the  receipt  were  liable  to  creditors, 
though  they  did  not  receive  the  money,  while  they  were  not 
liable  to  legatees  or  heirs;  but  this  distinction  has  no  standing 
in  a  court  of  equity,  whatever  may  be  the  rule  at  law,  and  is 
now  overruled.^ 

§  422.  If  an  executor  does  any  act  to  transfer  the  property 
into  the  exclusive  control  of  a  coexecutor,  and  thus  enables 
his  coexecutor  to  misapply  the  same,  he  will  be  liable;^   as  if 

1  Westerly  v.  Clarke,  1  Ed.  537;  1  Dick.  329;  Candler  v.  Tillett,  22  Beav. 
257;  Harden  v.  Parsons,  1  Ed.  147;  Churchill  v.  Hobson,  1  P.  Wms.  241, 
n.;  Stell's  App.,  10  Penn.  St.  152;  McNair's  App.,  4  Rawle,  145;  Ochiltree 
V.  Wright,  1  Dev.  &  B.  Eq.  336;  Doyle  v.  Blake,  2  Sch.  &  Lef.  242;  McKim 
V.  Aulbach,  130  Mass.  481. 

2  Westerly  v.  Clarke,  1  Ed.  537;  Scurfield  v.  Howes,  3  Bro.  Ch.  94; 
Hovey  v.  Blakeman,  4  Ves.  608;  Chambers  v.  Minchin,  7  Ves.  198;  Brice 
V.  Stokes,  11  Ves.  319;  3  Lead.  Cas.  Eq.  557,  558. 

»  Scurfield  v.  Howes,  3  Bro.  Ch.  94;  Hovey  v.  Blakeman,  4  Ves.  608; 
Chambers  v.  Minchin,  7  Ves.  198;  Brice  v.  Stokes,  11  Ves.  325;  3  Lead. 
Cas.  Eq.  725-759;  Walker  v.  Symonds,  3  Swanst.  64;  Shipbrook  v.  Hinch- 
inbrook,  16  Ves.  479;  Joy  v.  Campbell,  1  Sch.  &  Lef.  341;  Doyle  t;.  Blake, 
2  id.  242. 

"  1  P.  Wms.  241;  Gibbs  v.  Herring,  Pr.  Ch.  49;  Harden  v.  Parsons,  1 
Eden,  147. 

6  Sadler  v.  Hobbs,  2  Brown,  Ch.  117;  Doyle  v.  Blake,  2  Sch.  &  Lef.  239. 

6  Townshend  v.  Barber,  1  Dick.  356;  Moses  v.  Levi,  3  Y.  &  C.  359;  Cand- 
ler V.  Tillett,  22  Beav.  263;  Clough  i;.  Dixon,  3  Myl.  &  Cr.  497;  Dines  v. 
Scott,  T.  &  R.  361;  Edmonds  v.  Crenshaw,  14  Pet.  166;  Sparhawk  v.  Buell, 
9  Vt.  41 ;  Adair  v.  Brimmer,  74  N.  Y.  539.  [  In  re  Osbom,  87  Cal.  1 ;  Walker 
t;.  Walker,  88  Ky.  615.] 
682 


CHAP.  XrV'.]  LIABILITY    OF   COEXECUTORS.  [§  423. 

he  joins  in  drawing  '  or  indorsing  -  a  bill  or  note,  or  delivers  or 
assigns  securities  to  his  coexecutor  to  enable  him  to  receive  the 
money  alone,^  or  if  he  gives  him  a  power  of  attorney/  or  does 
any  other  act  that  enables  his  coexecutor  to  misapply  the  money; 
and  so  it  was  held,  "that,  if  by  agreement  between  the  execu- 
tors, one  be  to  receive  and  intermeddle  with  such  a  part  of  the 
estate,  and  the  other  with  such  a  part,  each  of  them  will  be 
chargeable  for  the  whole,  because  the  receipts  of  each  are  pur- 
suant to  the  agreement  made  betwixt  both."  ^  Probably  the 
case  would  not  now  be  followed,  but  it  illustrates  the  principle. 

§  423.  But  if  the  act  is  such  that  it  is  absolutely  necessary 
that  the  executors  should  all  join  in  it,  their  liability  will  be  put 
upon  the  same  ground  as  the  liability  of  trustees  joining;  as,  if 
it  is  necessary  that  they  should  indorse  a  bill  in  order  to  collect 
it,^  or  that  they  should  join  in  transferring  stock."  But  even 
if  the  act  is  indispensable,  it  is  still  the  duty  of  the  executor  to 
see  that  it  is  consistent  with  a  due  execution  of  the  trust, ^  and 
he  must  not  rely  upon  the  representations  or  assertions  of  his 
coexecutor,  as  to  its  necessity.  He  must  use  due  diligence  and 
make  due  investigations  to  ascertain  if  the  representations  are 
true;  ^  as  where  the  debts  should  have  been  long  paid  in  the 
ordinary  course  of  administration  a  coexecutor  applied  to  the 
other  to  join  in  a  sale  of  stocks  to  pay  the  debts,  and  the  executor 

»  Sadler  v.  Hobbs,  2  Bro.  Ch.  114. 

2  Hovey  v.  Blakeman,  4  Ves.  608. 
'  Candler  v.  Tillett,  22  Beav.  236. 

*  Doyle  V.  Blake,  2  Sch.  &  Lef.  231;  Lees  v.  Sanderson,  4  Sim.  28;  Kil- 
bee  V.  Sneyd,  2  Moll.  200. 

^  Gill  V.  Att.  Gen.,  Hardw.  314;  Moses  v.  Levi,  3  Y.  &  C.  359;  Lewis 
V.  Nobbs,  L.  R.  8  Ch.  D.  591. 

*  Hovey  v.  Blakeman,  4  Ves.  608. 

^  Chambers  v.  Minchin,  7  Ves.  197;  Shipbrook  v.  Hinchinbrook,  11 
Ves.  254;  16  Ves.  479;  Terrell  v.  Mathews,  1  Mac.  &  G.  4.34,  n.;  Murrill 
V.  Cox,  2  Vem.  570;  Scurfield  v.  Howes,  3  Bro.  Ch.  94;  Moses  v.  Levi,  3 
Y.  &  C.  359. 

*  Ibid.;  Underwood  v.  Stevens,  1  Mer.  712;  Bick  v.  Motley,  2  Myl. 
&  K.  312;  WiUiams  v.  Nixon,  2  Beav.  472;  Hewett  v.  Foster,  6  Beav.  259. 

3  Ibid. 

G83 


§  425.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

inquired  and  learned  that  there  were  debts  to  be  paid,  but  it 
afterwards  appeared  that  the  coexecutor  had  the  money  to  pay 
the  debts  in  his  own  hands;  the  executor  who  joined  in  convey- 
ing the  stocks  was  held  for  the  default  of  his  coexecutor,  on  the 
ground  of  negligence  in  not  knowing  how  the  assets  in  the 
hands  of  the  coexecutor  were  disposed  of,  and  how  it  happened 
that  the  debts  remained  unpaid.^ 

§  424.  So  an  executor  will  be  called  upon  to  make  good  the 
loss  of  money  that  he  allows  to  remain  two  years  or  any  other 
unreasonable  time  in  the  hands  of  his  coexecutor;  ^  but  he  will 
not  be  called  upon  to  repay  that  part  which  he  can  show  that 
his  coexecutor  actually  expended  in  the  execution  of  the  trust.^ 
So,  if  an  executor  neglects  for  an  unreasonable  time  to  insist 
upon  the  payment  of  a  debt  to  the  estate  due  from  his  coexecu- 
tor, he  will  be  liable  to  pay  the  debt  himself.^  (a) 

§  425.  The  same  rules  that  apply  to  the  powers  and  liabilities 
of  coexecutors  apply  also  to  the  powers  and  liabilities  of  joint 
administrators.  There  is  one  dictum  that  the  liability  of  joint 
administrators  is  like  the  liability  of  cotrustees,^  but  it  is  well 
settled  that  the  liability  of  joint  administrators  and  coexecutors 
is  identical.^ 

1  Shipbrook  v.  Hinchinbrook,  11  Ves.  254;  Bick  v.  Mathews,  3  Myl.  & 
K.  312;  Clark  v.  Clark,  8  Paige,  152. 

2  Scurfield  v.  Howes,  3  Bro.  Ch.  91;  Styles  v.  Guy,  1  Mac.  &  G.  422; 
1  H.  &  Tw.  523;  Egbert  v.  Butter,  21  Beav.  560;  Lincoln  v.  Wright,  4  Beav. 
427. 

3  Shipbrook  v.  Hinchinbrook,  11  Ves.  252;  16  Ves.  477;  Williams  v. 
Nixon,  2  Beav.  472;  Kilbee  v.  Sneyd,  2  Moll.  213;  Underwood  v.  Stevens, 
1  Mer.  172;  Brice  v.  Stokes,  11  Ves.  328;  Hewett  v.  Foster,  6  Beav.  259. 

"  Styles  V.  Guy,  1  Mac.  &  G.  422;  1  H.  &  Tw.  523;  Egbert  v.  Butter, 
21  Beav.  560;  Scully  v.  Delany,  2  Ir.  Eq.  165;  Candler  v.  Tillett,  22  Beav. 
257;  Carter  v.  Cutting,  5  Munf.  223. 

^  Hudson  V.  Hudson,  1  Atk.  460. 

«  Willand  v.  Fenn,  2  Ves.  267,  cited;  Murray  v.  Blatchford,  1  Wend. 
583;  O'NeaU  v.  Herbert,  1  McMul.  Eq.  495. 

(a)  An  executor  cannot  escape  leaving  the  matter  in  the  hands  of 
liability  for  loss  due  to  failure  to  call  his  coexecutor.  Stong's  Estate,  160 
in    loans   on    personal   security   by      Pa.  St.  13. 

684 


CHAP.  XIV.]        LIABILITY    FOR    ACTS   OF   COTRUSTEE.  [§  426. 

§  420.  It  must  be  borne  in  mind,  that  in  the  United  States, 
administrators,  executors,  guardians,  and  a  large  class  of  trus- 
tees, are  appointed  by  judges  of  probate,  surrogates,  ordinaries, 
or  officers  exercising  a  .similar  jurisdiction.  All  trustees  ap- 
pointed under  wills,  proved  and  recorded  in  probate  courts,  are 
appointed  by  decrees  of  the  court  in  the  same  manner  as  execu- 
tors. In  many  cases,  a  bond  with  sureties  is  required  as  a  pre- 
requisite to  an  appointment  and  qualification  to  act,  unless  such 
bond  is  expressly  waived  by  the  testator  or  the  ccsfui  f/vr  tnist. 
This  bond  generally  runs  to  the  judge  or  some  officer  for  the  use 
and  protection  of  those  beneficially  interested  in  the  estate.  If 
it  is  a  joint  bond,  executed  by  all  the  joint  administrators,  guar- 
dians, coexecutors  or  cotrustees,  it  is  in  the  nature  of  an  agree- 
ment to  be  answerable  for  each  other's  acts  and  defaults.  The 
remedy  for  a  breach  of  trust  in  such  cases  is  a  suit  upon  the 
bond  in  the  name  of  the  proper  person  for  the  benefit  of  those 
interested,  against  all  the  joint  makers  and  sureties  of  the  bond ; 
and  any  breaches  of  trust,  committed  by  either  or  all  of  the 
trustees,  may  be  given  in  evidence,  and  a  judgment  against  all 
will  be  rendered,  although  the  breach  of  trust  was  committed  by 
one  alone. ^  This  joint  liability  of  all  the  cotrustees  under  a 
joint  bond  results  from  the  nature  of  the  bond,  and  from  the 
technical  nature  of  an  action  at  law  for  a  breach  of  the  bond  by 
a  breach  of  the  trust.  If,  however,  one  of  the  coexecutors  or 
cotrustees  dies  and  a  breach  of  trust  is  committed  by  the  sur- 
vivor after  his  death,  the  estate  of  the  deceased  executor  cannot 
be  made  liable  for  the  breach  of  the  trust.-  It  will  be  seen  at 
once,  that  very  few  of  the  rules  heretofore  stated  in  relation  to 


'  Ames  V.  Armstronp;,  106  Mass.  3.5;  Hill  v.  Davis,  4  Mass.  137;  Brazcr 
V.  Clark,  5  Pick.  96;  Townc  v.  Ammidown,  20  Pick.  535;  Newcombe  v. 
Williams,  9  Met.  525;  Sparhawk  v.  Buell,  9  Vt.  41;  Boyd  v.  Boyd,  1  Watts, 
368;  Bostick  v.  Elliott,  3  Head,  507;  liraxton  v.  State,  25  Ind.  82;  Jeffries 
V.  Lawson,  39  Miss.  791;  Gayden  v.  Cayden,  1  McMul.  Eq.  435;  Huphlett 
V.  Ilughlett,  5  Humph.  453;  Clarke  v.  State,  6  G.  &  J.  288;  South  v.  Hay, 
3  Mon.  88;  Anderson  v.  Miller,  6  J.  J.  Marsh.  568;  Morrow  v.  Peyton,  8 
Leigh,  54;  Babcock  v.  Hubbard,  2  Conn.  539. 

2  Brazer  v.  Clark,  5  Pick.  96;  Towne  v.  Ammidown,  20  Pick.  535. 

685 


§  427.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

the  liabilities  of  executors  or  trustees  for  the  acts  and  defaults 
of  their  coexecutors  or  cotrustees  have  any  bearing  upon  the 
liability  of  cotrustees  who  have  given  a  joint  bond  for  the  faith- 
ful execution  of  the  trust.  The  statutes  of  many  of  the  States, 
however,  provide  that  separate  bonds  with  sureties  may  be 
taken  from  each  of  the  administrators,  executors,  guardians,  or 
trustees,  as  the  case  may  be.  And  where  separate  bonds  are 
taken  from  each  of  the  executors  or  trustees,  the  liability  of  the 
executor  or  trustee  for  the  acts  and  defaults  of  his  coexecutor 
or  cotrustee  would  be  governed  by  the  rules  and  principles 
hereinbefore  stated.^  But  if  they  sign  a  joint  bond,  they  are 
jointly  liable.^ 

§  427.  Trustees  hold  a  position  of  trust  and  confidence.  The 
legal  title  of  the  trust  property  is  in  them,  and  generally  its 
whole  management  and  control  is  in  their  hands.  At  the  same 
time  the  beneficiaries  of  the  trust  may  be  women,  or  children,  or 
persons  incompetent  to  protect  their  own  interests.  For  these 
reasons,  to  protect  the  weak  and  helpless  on  the  one  hand,  and 
to  prevent  trustees  from  using  their  position  and  influence  for 
their  own  gain,  and  to  prevent  them  from  hazarding  the  trust 
property  upon  what  they  may  think  to  be  profitable  specula- 
tions, on  the  other,  they  are  not  allowed  to  make  any  profit  from 
their  office.  They  cannot  use  the  trust  property,  nor  their  rela- 
tion to  it,  for  their  own  personal  advantage.  All  the  power  and 
influence  which  the  possession  of  the  trust  fund  gives  must  be 
used  for  the  advantage  and  profit  of  the  beneficial  owners,  and 
not  for  the  personal  gain  and  emolument  of  the  trustee.  No 
other  rule  would  be  safe;  nor  would  it  be  possible  for  courts  to 
apply  any  other  rule,  as  between  trustee  and  cestui  que  trust?   (a) 

1  McKim  V.  Aulbach,  130  Mass.  481. 
*  Ames  V.  Armstrong,  106  Mass.  18. 

»  Burgess  v.  Wheate,  1  Ed.  226;  Docker  v.  Somes,  2  Myl.  &  K.  664; 
O'Herlihy  v.  Hedges,  1  Sch.  &  Lef.  126;  Bentley  v.  Craven,  18  Beav.  75; 

(o)  A  trustee  will  not  be  allowed  from  his  dealings  with  trust  property, 
to  retain  for  himself  a  profit  made     although  he  is  able  to  show  that  the 

686 


CHAP.  XIV. J  TRUSTEES    CAx\    MAKE    NO    PROFIT. 


[§  427. 


This  rule  is  so  stringent  that  Lord  Kldoii  once  sent  a  case  to  a 
master  to  inquire  whetlier  the  privilege  of  sporting  on  the  trust 

Gubbins  v.  Creed,  2  Sch.  &  Lcf.  218;  Ex  parte  Andrews,  2  Rose,  412;  Ham- 
ilton V.  Wright,  9  CI.  &  Fin.  Ill;  Middleton  v.  Spicer,  1  Bro.  Ch.  205; 
Shcrrard  v.  Harboroup;h,  Amb.  165;  Re  Shrewsbury  School,  1  Myl.  &  Cr. 
617;  Martin  v.  Martin,  12  Sim.  579;  Cooke  v.  Cholmondeley,  3  Drew.  1; 
Hawkins  v.  Chappell,  1  Atk.  621;  Johnson  v.  Baber,  22  Beav.  .%2;  6  De 
G.,  M.  &  G.  439;  Parshall's  App.,  65  Penn.  St.  233;  Ellis  v.  Barber,  L.  R. 
7  Ch.  104;  Sloo  v.  Law,  3  Blatch.  C.  C.  457;  Williams  r.  Stevens,  L.  R.  1 
P.  C.  352. 


profit  was  not  made  at  the  expense 
of  the  trust.  Jarrett  v.  Johnson,  216 
111.  212;  Bay  State  Gas  Co.  v.  Rog- 
ers, 147  Fed.  557.  But  see,  contra, 
Heckscher  t'.  Blanton,  66  S.  E. 
859  (Va.  1910).  Thus  where  a 
trustee  of  property  which  his  duty 
as  trustee  required  him  to  insure 
joined  an  underwriters'  association 
and  by  reason  of  his  membership  re- 
ceived a  commission  on  insurance 
premiums  paid  by  him  on  the  trust 
property,  he  was  required  to  turn 
his  commission  over  to  the  trust, 
although  the  insurance  premiums 
were  no  larger  because  of  his  com- 
missions. White  V.  Sherman,  168 
111.  589.  But  with  respect  to  such 
commissions  he  is  a  debtor,  not  a 
trustee,  and  the  cestui  is  not  entitled 
to  trace  them  into  property  which 
the  trustee  has  purchased  and  claim 
it  as  belonging  to  the  trust.  Lister 
V.  Stubbs,  45  Ch.  Div.  1. 

Where  one  of  two  cotrustees  re- 
ceived a  bonus  upon  an  investment 
which  resulted  in  a  loss  to  the  trust 
estate,  he  was  obliged  to  make  good 
the  loss  on  the  investment,  and  also 
to  turn  over  the  bonus  to  the  trust 
estate.     In  re  Smith,  44  W.  R.  270. 

A  trustee  may  retain  for  himself 
remuneration  as  director  of  a  corpo- 
ration when  his  election  as  director 


was  due  to  his  ownership  of  shares  of 
stock  as  trustee.  In  re  Dover  Coal- 
field Extension,  [1907]  2  Ch.  76; 
[1908],  1  Ch.  65.  See  contra,  In  re 
Francis,  74  L.  J.  Ch.  198.  The  dis- 
tinction between  these  two  cases  lies 
in  the  fact  that  the  commissions  in 
the  former  case  were  paid  to  the 
trustee  in  a  matter  wherein  he  acted 
for  the  trust,  while  in  the  latter  case 
his  remuneration  as  director  was  for 
services  rendered  entireh-  to  the 
corporation.  See  also  Whitney  v. 
Smith,  4  Ch.  513,  where  a  solicitor 
obtained  employment  in  a  matter 
disconnected  with  the  trust  because 
of  his  position  as  trustee.  In  Matter 
of  Hirsch,  116  App.  Div.  367  (af- 
firmed 188  N.  Y.  584),  the  opinion 
was  expressed  that  it  was  improper 
conduct  for  a  trustee  who  had  been 
elected  president  of  a  corporation  by 
reason  of  his  ownership  of  stock  held 
in  trust,  to  allow  the  directors  to 
vote  him  a  large  increase  of  salary 
over  that  which  the  former  presi- 
dent had  drawn. 

The  same  principle  applies  to 
agents  and  partners.  Thus  an  agent 
to  buy  or  sell  cannot  retain  for  him- 
self a  commission  or  bonus,  paid 
entirely  by  the  other  party  to  the 
transaction.  WiUiamson  v.  Krohn, 
66  Fed.  655. 

687 


§  428.]  GENERAL    DUTIES    OF    TRUSTEES.  [CILA-P.  XIV. 

estate  could  be  let  for  the  benefit  of  the  cestui  que  trust;  if  not, 
he  thought  the  game  should  belong  to  the  heir;  the  trustee 
might  appoint  a  game-keeper  for  the  preservation  of  game  for 
the  heir,  but  he  ought  not  to  keep  up  a  lodge  for  his  own  pleas- 
ure.^ So  where  a  trustee  retired  from  the  office  in  consideration 
that  his  successor  paid  him  a  sum  of  money,  it  was  held  that  the 
money  so  paid  must  be  treated  as  a  part  of  the  trust  estate,  and 
that  the  trustee  must  account  for  it,  as  he  could  make  no  profit, 
directly  or  indirectly,  from  the  trust  property  or  from  the  posi- 
tion or  office  of  trustee.^  If  a  trustee  joins  in  betraying  the 
trust  for  private  gain,  he  will  have  to  bear  any  loss  that  may 
fall  on  him  by  the  dishonesty  of  his  confederates.  The  law  will 
not  aid  him  against  them.  It  will  not  unravel  a  tangled  web  of 
fraud  for  the  benefit  of  one  through  whose  agency  the  web  was 
woven  and  who  has  himself  become  enmeshed  therein.^  Trus- 
tees may  be  enjoined  from  carrying  out  a  contract  made  for 
their  own  benefit.^  But  where  one  holds  a  trust  for  the  support 
of  another,  the  trustee  may  supply  goods  from  his  store  at  a 
fair  price.  This  is  not  dealing  with  the  trust  for  his  private 
gain.^ 

§  428.  A  trustee,  executor,  or  assignee  cannot  buy  up  a  debt 
or  incumbrance  to  which  the  trust  estate  is  liable,  for  less  than 
is  actually  due  thereon,  and  make  a  profit  to  himself;  but  such 
purchase  inures  for  the  benefit  of  the  trust  estate,  and  the  credi- 
tors, legatees,  and  cestuis  que  trust  shall  have  all  the  advantage 
of  such  purchase.^    But  if  a  trustee  buys  up  an  outstanding  debt 

1  Webb  V.  Shaftesbury,  7  Ves.  480;  Hutchinson  v.  Morritt,  3  Y.  &  C.  47. 

2  Sugden  v.  Crossland,  3  Sm.  &  Gif.  192. 

3  Farley  v.  St.  Paul  M.  &  M.  Rd.,  4  McCrary,  (U.  S.)  142. 

*  Sloo  V.  Law,  3  Blatch.  C.  C.  457. 
s  Cogbill  V.  Boyd,  77  Va.  450. 

•  Robinson  v.  Pett,  3  P.  Wms.  251,  n.  (a);  Pooley  v.  Quilter,  4  Drew. 
184;  2  De  G.  &  J.  327;  Morret  v.  Paske,  2  Atk.  54;  Dunch  v.  Kent,  1  Vera. 
241;  Darcy  v.  Hall,  id.  49;  Ex  parte  Lacey,  6  Ves.  628;  Anon.  1  Salk.  155; 
Fosbrooke  v.  BaJguy,  1  Myl.  &  K.  226;  Carter  v.  Home,  1  Eq.  Cas.  Ab. 
7;  Schoonmaker  v.  Van  Wyke,  31  Barb.  457;  Matter  of  Oakley,  2  Edw. 

688 


CHAP.  XIV.]  TRUSTEES   CAN    MAKE    NO    I'UOFIT.  [§  428. 

for  the  benefit  of  the  cestuis  que  tnist,  and  tliey  refuse  to  take  it 
or  to  pay  the  purchase-money,  they  cannot  afterwards,  when 
the  purchase  turns  out  to  be  beneficial,  claim  the  benefit  for 
themselves.'  Nor  can  the  trustee  make  any  contract  with  the 
cestui  que  trust  for  any  benefit,  or  for  the  trust  property,  nor 
can  he  accept  a  gift  from  the  cestui  que  trust.^  The  better  opin- 
ion, however,  is,  that  a  trustee  may  purchase  of  the  cestui  que 
trust,  or  accept  a  benefit  from  him,  but  the  transaction  must  be 
beyond  suspicion ;  and  the  burden  is  on  the  trustee  to  vindicate 
the  bargain  or  gift  from  any  shadow  of  suspicion,  and  to  show 
that  it  was  perfectly  fair  and  reasonable  in  ever}'  respect,  and 
courts  will  scrutinize  the  transaction  with  great  severity.'^  So, 
if  a  trustee  buys  the  trust  property  at  private  sale  or  public 
auction,  he  takes  it  subject  to  the  right  of  the  cestui  que  trust  to 
have  the  sale  set  aside,  or  to  claim  all  the  benefits  and  profits  of 
the  sale  for  himself.^ 

478;  Herr's  Est.,  1  Grant's  Cas.  272;  Qiiackenbush  v.  Leonard,  9  Paige, 
334;  Slade  v.  Van  Vechten,  11  Paige,  21;  Barksdale  v.  Finney,  14  Grat. 
338;  King  v.  Cushman,  41  111.  31.  [  Baugh's  Ex'r  v.  Walker,  77  Va.  99.  See 
Bush  V.  Webster,  72  S.  W.  364  (Ky.  1903).    Supra,  §  195,  note  b.] 

»  Barwell  v.  Barwell,  34  Beav.  371. 

2  Vaughton  v.  Noble,  30  Beav.  34;  Baxter  v.  Costin,  1  Busb.  Eq.  262; 
Andrews  v.  Hobson,  23  Ala.  219;  Mason  v.  Martin,  4  Md.  124;  Green  v. 
Winter,  1  Johns.  Ch.  26;  Spindler  v.  Atkinson,  3  Md.  409;  Wiswall  v. 
Stewart,  3  Ala.  433.     [  Avery  v.  Averj^  90  Ky.  613.] 

>  Ex  parte,  Lacey,  6  Ves.  626;  Scott  v.  Davis,  1  Myl.  &  Or.  87;  Coles 
V.  Trccothick,  9  Ves.  2.34;  Morse  v.  Royal,  12  Ves.  372;  Dunlop  v.  Mitchell, 
10  Ohio,  17;  Harrington  v.  Brown,  .5  Pick.  519;  Bolton  v.  Gardner,  3  Paige, 
273;  Ames  v.  Downing,  1  Bradf.  321;  Lyon  v.  Lyon,  8  Ired.  Eq.  201;  Pen- 
nock's  App.,  14  Penn.  St.  446;  Bruch  v.  Lantz,  2  Rawle,  392;  Stuart  v. 
Kissam,  2  Barb.  493;  Jones  v.  Smith,  33  Miss.  215;  Soller  v.  Chandler.  26 
Miss.  154;  Heme  v.  Meeres,  1  Vem.  465;  Smith  v.  Isaac,  12  Mo.  106;  ante 
§  195. 

*  Beeson  v.  Beeson,  9  Barr,  279;  Patton  v.  Thompson,  2  Jones,  Eq. 
285;  Mason  v.  Martin,  4  Md.  124;  Spindler  r.  Atkinson,  3  Md.  409;  Davoue 
V.  Fanning,  2  Johns.  Ch.  252;  Iddings  v.  Bruer,  4  Sandf.  Ch.  222;  Hen- 
dricks V.  Robinson,  2  Johns.  Ch.  283;  Evertson  v.  Tappan,  5  id.  497;  Smith 
V.  Lansing,  22  N.  Y.  530;  Ames  i'.  Downing,  1  Bradf.  321;  Andrews  v.  Hob- 
son,  23  Ala.  219;  Charles  i'.  Dubois,  29  Ala.  367;  Wiswall  v.  Stewart,  32 
Ala.  433;  Bellamy  v.  Bellamy,  6  Fla.  62;  Schoonmaker  v.  Van  Wyke,  31 
Barb.  457.     [Supra,  §  195,  n.] 

VOL.  I.  —  44  689 


§429. 


GENERAL   DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 


§  429.  Trustees  cannot  make  a  profit  from  the  trust  funds 
committed  to  them,  by  using  the  money  in  any  kind  of  trade 
or  speculation,  nor  in  their  own  business;  nor  can  they  put  the 
funds  into  the  trade  or  business  of  another,  under  a  stipulation 
that  they  shall  receive  a  bonus  or  other  profit  or  advantage.  In 
all  such  cases,  the  trustees  must  account  for  every  dollar  re- 
ceived from  the  use  of  the  trust-money  (a)  and  they  will  be 
absolutely  responsible  for  it  if  it  is  lost  in  any  such  transac- 
tions. (6)     By  this  rule,  trustees  may  be  liable  to  great  losses 


(a)  SmeltingCo.f.  Reed,  23  Colo. 
523. 

(6)  He  becomes  an  insurer  of  the 
fund  with  at  least  simpleinterest  and 
must  make  good  any  loss,  accidental 
or  otherwise.  Bangor  v.  Beal,  85  Me. 
129;  Re  Hodges'  Estate,  66  Vt.  70; 
Ward  V.  Tinkham,  65  Mich.  695. 
He  incurs  the  same  liability  when  he 
deposits  money  in  the  bank  or  in- 
vests in  his  own  name  as  an  individ- 
ual.   White  V.  Sherman,  168  111.  589. 

When  the  misappropriated  trust 
funds  have  been  so  mingled  with 
funds  of  the  trustee  that  their  in- 
crease and  income  cannot  be  deter- 
mined, it  is  usual  to  impose  upon 
him  a  charge  of  interest  at  not  less 
than  the  legal  rate,  and  at  a  rate  as 
much  larger  as  may  be  necessary  to 
give  to  the  trust  all  the  estimated  in- 
crease and  income  of  the  misappro- 
priated funds.  (See  cases  cited  in- 
fra, this  note.)  His  liability  with  re- 
spect to  income  upon  misappropri- 
ated trust  funds  is  to  make  up  to  the 
trust  the  income  which  the  trust 
funds  would  have  earned  if  they  had 
been  properly  invested,  and  to  turn 
over  to  the  trust  all  the  actual  profit 
or  income  in  excess  of  this  amount. 
General  Proprietors  v.  Force,  72  N. 
J.  Eq.  56.  (See  also  cases  cited  in- 
fra, this  note.)    The  charge  of  simple 

690 


interest  at  the  legal  rate  usually 
brings  to  the  trust  more  than  the 
funds  would  have  earned  if  properly 
invested  as  trust  funds  should  be, 
but  it  is  reasoned  that  the  most  len- 
ient view  of  such  a  transaction  is 
that  the  trustee  is  a  borrower  of  the 
trust  funds  and  as  such  should  pay 
the  legal  rate.  Bangor  v.  Beal,  85 
Me.  129;  Society  v.  Pelham,  58  N. 
H.  566;  Stanley's  Estate  v.  Pence, 
160  Ind.  636;  Conn.  v.  Howarth,  48 
Conn.  207;  Erie  School  District  v. 
Griffith,  203  Pa.  St.  123;  White  v. 
Ditson,  140  Mass.  351,  362;  Young's 
Estate,  97  Iowa,  218;  Wolfort  v. 
Reilly,  133  Mo.  463. 

Simple  interest  in  excess  of  the 
legal  rate  or  compound  interest  is 
imposed,  not  for  the  purpose  of  pun- 
ishing the  trustee  for  his  breach  of 
trust,  but  for  the  purpose  of  giving 
to  the  trust  the  increase  and  profits 
earned  by  the  trust  funds.  Hazard 
V.  Durant,  14  R.  I.  25;  Cook  v. 
Lowry,  95  N.  Y.  103;  Kane  v.  Kane's 
Adm'r,  146  Mo.  605;  Perrin  v.  Lep- 
per,  72  Mich.  454,  551,  555;  Leh- 
man V.  Rothbarth,  159  111.  270;  In 
re  Davis,  [1902]  2  Ch.  314;  Forbes  i;. 
Allen,  166  Mass.  569;  Forbes  v. 
Ware,  172  Mass.  306;  In  re  Ricker's 
Estate,  14  Mont.  153,  29  L.  R.  A. 
622  and  note;  Hughes  v.  The  People, 


CIIAP.  XIV.]  TRUSTEES   CAN    MAKE    NO    PROFIT, 


l§  429. 


while  they  can  receive  no  profit;  and  the  rule  is  made  thus 
stringent,  that  trustees  may  not  be  tempted  from  selfish  mo- 


111  111.  457;  In  re  Eschrich,  85  Cal. 
98;  In  re  Clary,  112  Cal.  292.  See 
also  Vyse  v.  Foster,  8  Ch.  309,  335. 
But  see  Page's  Ex'r  v.  Holman,  82 
Ky.  573.  In  Forbes  v.  Ware,  172 
Mass.  306,  the  conclusion  of  the 
court  is  summed  up  as  follows:  "In 
other  words,  the  principle  of  liabil- 
ity is  accountability  for  what  has 
been  received,  or  ought  to  have  been 
received,  or  must  be  presumed  to 
have  been  received,  and  not  punish- 
ment for  a  breach  of  duty." 

Where  the  trustee  has  used  trust 
funds  in  his  own  business,  the  court 
will  not  usually  give  to  the  trust  a 
definite  share  of  the  profits,  but  will 
charge  the  trustee  with  interest 
at  a  rate  based  to  some  e.xtent  upon 
the  size  of  the  profits  earned  in  the 
business  if  the  rate  of  return  is  larger 
than  simple  interest  at  the  legal  rate. 
Faulkner  v.  Hendy,  103  Cal.  15;  In 
re  Thompson,  101  Cal.  349;  Page's 
Ex'r  V.  Holman,  82  Ky.  573.  But 
where  the  business  itself  is  partly  the 
property  of  the  trust  estate  a  definite 
share  of  the  profits  should  be  given 
to  the  trust.  This  is  frequently  the 
case  where  a  surviving  or  solvent 
partner  continues  the  business  on 
his  own  account.  Perrin  v.  Lepper, 
72  Mich.  454,  551;  Jones  v.  Dexter, 
130  Mass.  380.  See  Byrne  v.  Mc- 
Grath,  130  Cal.  316. 

It  has  been  held  that  where  per- 
sons borrow  trust  funds  with  notice 
that  the  loan  to  them  is  a  breach  of 
trust,  the  rate  of  interest  charged  is 
not  based  upon  the  earnings  of  the 
trust  funds.  In  other  words  the 
principle  that  the  trustee  shall  not 
be  permitted  to  gain  a  profit  from 


the  use  of  trust  funds  has  no  appli- 
cation to  such  borrowers.  Stroud  v. 
Gwyer,  28  Beav.  130;  Dent  v. 
Slough,  40  Ala.  518;  Rau  i;.  Small, 
144  Pa.  St.  304.  See  30  Am.  Law 
Reg.  (n.  8.),  569.  But  when  the 
trustee  lends  to  a  partnership  of 
which  he  is  a  member  the  principle 
applies  to  the  extent  that  his  share  of 
profits  is  increased  by  use  of  the 
trust  funds.  See  In  re  Davis,  [1902] 
2  Ch.  314;  Hankey  v.  Garratt,  1  Ves. 
Jr.  236;  Docker  v.  Somes,  2  Myl.  & 
K.  655;  30  Am.  Law  Reg.  (n.  s.)  569. 
On  the  question  of  liability  of  the 
trustee's  copartners  in  such  cases, 
see  infra,  §  846  and  note. 

If  misappropriated  trust  funds 
can  be  traced  and  identified  their  en- 
tire increase  and  income  belong  to 
the  trust.  Hazard  v.  Durant,  14  R. 
I.  25.  Thus  where  a  trustee  used 
trust  funds  to  pay  all  the  premiums 
on  a  policy  of  insurance  upon  his 
life,  it  has  been  held  that  the  entire 
proceeds  of  the  policy  belonged  to 
the  cestui.  Holmes  v.  Gilman,  138 
N.  Y.  369.  See  also  Byrne  v.  Mc- 
Grath,  130  Cal.  316.  But  see  In  re 
Ricker's  Estate,  14  Mont.  153,  29 
L.  R.  A.  622. 

Where  it  appears  that  an  article  of 
property  or  a  parrel  of  land  has  been 
purchased  with  a  fund  of  which  the 
trust  funds  form  only  a  small  part, 
it  has  not  been  clear  from  the  cases 
whether  the  cestui  is  entitled  to  a 
share  in  the  property  itself,  if  it  has 
increased  in  value,  or  is  confined  to 
his  lien  upon  the  property  for  the 
principal  of  the  trust  funds  which 
have  gone  into  it  and  an  equitable 
share  of  the  increase,  as  income  upon 

691 


§  430.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

tives  to  embark  the  trust  fund  upon  the  chances  of  trade  and 
speculation.^  If  a  trustee  charge  a  bonus  in  his  account  for  his 
skill  and  services  in  conducting  the  business  of  the  trust,  it  will 
be  set  aside.^ 

§  430.  All  persons  who  stand  in  a  fiduciary  relation  to  others 
must  account  for  all  the  profits  made  upon  moneys  in  their 
hands  by  reason  of  such  relation.^  Thus  partners  stand  in  a 
fiduciary  relation  to  each  other,  and  if  a  partner,  instead  of 
winding  up  the  partnership  affairs,  when  for  any  reason  he 
ought  to  do  so,  continues  to  use  the  partnership  property  in 
business,  and  makes  a  profit  thereon,  he  must  account  for  it.* 

1  Docker  v.  Somes,  2  Myl.  &  K.  664;  Willett  v.  Blanford,  1  Hare,  253; 
Cummins  v.  Cummins,  6  Ir.  Eq.  723;  Wedderburn  v.  Wedderbum,  2  Keen, 
722;  4  Myl.  &  Cr.  41;  22  Beav.  84;  Townend  v.  Townend,  1  Gif.  201;  Parker 
V.  Bloxam.  20  Beav.  295;  Manning  v.  Manning,  1  Johns.  Ch.  527;  Brown 
V.  Ricketts,  4  id.  303;  In  re  Thorp,  Davies,  290;  William  v.  Stevens,  L.  R. 
1  P.  C.  352;  Blauvelt  v.  Ackerman,  20  N.  J.  Eq.  141;  Durling  v.  Hammer, 
id.  220;  Pluman  v.  Slocum,  41  N.  Y.  53;  Frank's  App.,  5  Penn.  St.  190. 

2  Barrett  v.  Hartly,  L.  R.  2  Eq.  789. 

'  Hawley  v.  Cramer,  4  Cow.  717;  Richardson  v.  Spencer,  18  B.  Mon. 
450;  Thorp  v.  McCuUum,  1  Gil.  (111.)  615;  Van  Epps  v.  Van  Epps,  9  Paige, 
237;  Ackerman  v.  Emot,  4  Barb.  626. 

*  Bentley  v.  Craven,  18  Beav.  75;  Parsons  v.  Hayward,  31  Beav.  199; 
Crawshay  v.  Collins,  15  Ves.  226;  Brown  v.  De  Tastet,  Jac.  284;  Wedder- 
burn V.  Wedderburn,  2  Keen,  722;  4  Myl.  &  Cr.  41;  22  Beav.  84.  [  Perrin 
V.  Lepper,  72  Mich.  454,  551.]  A  partner  who  receives  the  partnership 
property  on  a  resale  from  the  purchaser  at  public  auction,  by  a  secret 
arrangement  between  them,  is  bound  to  account  as  if  no  sale  had  been  made, 
although  his  copartner  was  a  bidder  at  the  auction  sale.  Jones  v.  Dexter, 
130  Mass.  380. 

the  investment.     In  New  Jersey  it  inclined  to  confine  the  cestui  to  an 

has  been  held  that  the  cestui  has  the  equitable  lien  upon  the  property  into 

option  of  claiming  the  land  subject  which  the  trust  funds  are  traced, 

to  the  trustee's  lien  for  the  amount  of  Humplireys  v.  Butler,  51  Ark.  351; 

his  own  money  used  in  the  purchase  Lehman  v.  Rothbarth,  159  111.  270; 

and  improvement,  or  of  claiming  a  In  re  Ricker's  Estate,  14  Mont.  153, 

lien  for  the  amount  of  trust  funds  29  L.  R.  A.  622,  and  note;  Bresni- 

put  into  the  land.    Bohle  v.  Hassel-  han  v.  Sheehan,  125  Mass.  11.     See 

broch,  64  N.  J.  Eq.  334.     See  also  also  19  Harv.  Law  Rev.  511  (article 

Rochfoucauld  v.  Boustead,  [1898]  1  by  Prof.  J.  B.  Ames). 
Ch.  550.     Other  recent  cases  seem 

692 


CHAP.  XIV.]  TRUSTEES    CAN    MAKE    NO    FUOFIT.  [§  431. 

But  in  making  up  the  accounts,  courts  will  make  a  just  allow- 
ance for  time,  skill,  and  other  elements  of  success  in  conducting 
the  business.^  If  a  trader  has  trust  funds  in  his  hands,  not  in  a 
fiduciary  character,  but  through  a  breach  of  trust  by  a  trustee, 
he  is  liable  only  for  interest.^  Agents,  guardians,  directors  of 
corporations,  officers  of  municipal  corporations,  and  all  other 
persons  clothed  with  a  fiduciary  character,  are  subject  to  this 
rule.^  (a) 

§  431.  So  if  persons,  standing  in  such  a  relation  to  an  estate, 
obtain  advantages  in  respect  to  it,  those  who  succeed  to  the 
estate  shall  have  the  advantages  which  are  thus  obtained.'*  As 
where  a  mortgagee  had  purchased  the  right  of  dower  of  the 
widow  of  a  deceased  mortgagor,  the  heir  of  the  mortgagor,  upon 
a  bill  to  redeem,  was  held  to  have  the  right  to  take  the  purchase 
of  the  dower  at  the  price  which  the  mortgagee  had  paid.^  So  an 
heir  cannot  hold  an  incumbrance  for  more  than  he  gave  for  it, 
against  the  creditors  of  the  ancestor's  estate,®  and  it  is  con- 
ceived that  the  same  rule  applies  to  a  devisee.^  But  if  the  heir 
or  devisee  is  himself  an  incumbrancer  at  the  death  of  the  ancestor, 

>  Docker  v.  Somes,  2  Myl.  &  K.  662;  Willett  v.  Blanford,  1  Hare,  253; 
Brown  v.  De  Tastet,  Jac.  284. 

2  Strowd  V.  Gwyer,  28  Beav.  130;  Townend  v.  Townend,  1  Gif.  210; 
Simpson  v.  Chapman,  4  De  G.,  M.  &  G.  154;  Macdonald  v.  Richardson, 
1  Gif.  81;  Brown  v.  De  Tastet,  Jac.  284;  Chambers  v.  Howell,  11  Beav.  6; 
Ex  parte  Watson,  2  V.  &  B.  414.  [  Dent  v.  Slough,  40  Ala.  518;  Rau  v. 
Small,  144  Pa.  St.  304.    Sec  30  Am.  Law  Reg.  (n.  s.)  569.] 

'  Morret  v.  Paske,  2  Atk.  52;  Powell  v.  Glover,  3  P.  Wms.  251;  Great 
Luxembourg  Ry.  Co.  v.  Magnay,  23  Beav.  640;  25  Beav.  586;  Chaplin  v. 
Young,  33  Beav.  414;  Bowes  v.  Toronto,  11  Moore,  P.  C.  C.  463;  Docker 
V.  Somes,  2  Myl.  &  K.  665. 

*  Baldwin  v.  Bannister,  cited  3  P.  Wms.  251;  Dobson  t'.  Land,  8  Hare, 
220;  Arnold  v.  Garner,  2  Phill.  231;  Mathison  v.  Clarke,  3  Drew.  3. 

5  Ibid. 

9  Lancaster  v.  Evors,  10  Beav.  154;  1  Phill.  354;  Morret  v.  Paske,  2  Atk. 
54;  Long  v.  Clopton,  1  Vern.  464;  Brathwaite  v.  Brathwaite,  id.  334;  Darcy 
t;.  Hall,  id.  49. 

'  Long  V.  Clopton,  1  Vern.  464;  Davis  v.  Barrett,  14  Beav.  542. 

(a)  Namely,  the  rule  applicable  to  trustees. 

693 


§  432.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

he  may  buy  in  a  prior,  but  not  a  subsequent,  incumbrance,  and 
hold  it  for  the  whole  amount  due.  The  court  considers  him,  in 
buying  such  a  prior  incumbrance,  not  as  heir  or  devisee,  but  as 
an  incumbrancer  or  stranger;  and  so  if,  as  such  prior  incum- 
brancer, he  obtains  a  prior  incumbrance  by  the  bounty  or  gift 
of  another,  he  shall  hold  such  bounty  or  gift  for  the  benefit  of  his 
own  incumbrance,  and  there  is  no  reason  why  he  should  hold  it 
for  the  benefit  of  the  creditors  of  the  ancestor.^  So  the  heir  or 
devisee  may  hold  a  prior  incumbrance  for  full  value,  though 
bought  for  less,  against  a  subsequent  incumbrancer.^  So,  if  one 
of  several  joint  purchasers  of  an  estate  buy  in  an  incumbrance 
for  less  than  its  face,  he  shall  hold  it  for  his  copurchasers  at  the 
same  price  he  paid.^  And  the  opinion  has  been  expressed,  that 
a  tenant  for  life  holds  the  same  relation  toward  the  remainder- 
man; and  if  such  tenant  buy  in  an  incumbrance  upon  the  estate 
for  less  than  its  face,  he  cannot  claim  from  the  remainder-man 
more  than  he  gave.^ 

§  432.  The  rule  that  trustees  can  make  no  profit  out  of  the 
estate  is  carried  so  far  in  England  that  they  can  receive  no  com- 
pensation for  their  services.  In  the  United  States,  trustees  are 
entitled  to  reasonable  compensation.  But  both  in  England  and 
the  United  States,  a  trustee  can  receive  no  indirect  profit  from 
the  estate  by  reason  of  his  connection  with  it.  Thus  a  trustee 
cannot  be  appointed  receiver  with  a  salary,^  nor  would  he  be 

'  Davis  V.  Barrett,  14  Beav.  542;  Darcy  v.  Hall,  1  Vern.  49;  Anon.  1 
Salk.   1.55. 

2  Davis  V.  Barrett,  14  Beav.  542. 

^  Carter  i;.  Home,  1  Eq.  Cas.  Ab.  7.  [  Morrison  v.  Roehl,  215  Mo.  545. 
See  supra,  §  195,  note.] 

*  Hill  V.  Brown,  Dr.  433.  [  Downing  v.  Hartshorn,  69  Neb.  364;  Keller 
V.  Fenske,  123  Wis.  435;  First  Cong.  Church  v.  Terry,  130  Iowa,  513; 
Griffith  V.  Owen,  [1907]  1  Ch.  195.  See  also  JNIagness  v.  Harris,  SO  Ark. 
583;  Blair  v.  Johnson,  215  111.  552;  Crawford  v.  Meis,  123  Iowa,  610;  Boon 
V.  Root,  137  Wis.  451;  Lewis  v.  Wright,  148  Mich.  290;  supra,  §  195,  note.] 

*  Sutton  V.  Jones,  15  Ves.  584;  Morison  v.  Morison,  4  Myl.  &  Cr.  215; 

Sykes  v.  Hastings,  11  Ves.  363;  v.  Jolland,  8  Ves.  72;  Anon.,  3  Ves. 

515. 

694 


CHAP.  XIV.]  COMPENSATION    FOR    SERVICES.  [§  432. 

appointed  without  compensation  except  under  peculiar  circum- 
stances; for  it  is  his  duty  to  superintend  and  watch  over  the 
receiver.^  The  same  reasons  do  not  apply  for  excluding  a  dry 
trustee."  If  trustees  are  factors,^  or  brokers/  or  commission 
agents/  or  auctioneers/  or  bankers/  or  attorneys,  or  soHcitors/ 
they  can  make  no  charges  against  the  trust  estate  for  services 
rendered  by  them  in  their  professional  capacity  to  the  estate  of 
which  they  are  trustees.  They  may  employ  the  services  of  such 
agents,  if  necessary,  and  pay  for  them  from  the  estate;  but  if 
they  undertake  to  act  in  such  capacities  themselves  for  the 
estate,  they  can  receive  no  compensation,  (a)    This  rule  is  so 

>  Sykes  v.  Hastings,  11  Ves.  .363. 

2  Sutton  V.  Jones,  15  Ves.  587. 

'  Scattcrgood  v.  Harrison,  Mos.  128. 

*  Arnold  v.  Garner,  2  PhiU.  231. 

»  Sheriff  v.  Aske,  4  Russ.  33. 

'  Mathison  v.  Clarke,  3  Drew.  3;  Kirkman  v.  Booth,  11  Beav.  273. 

'  Crosskill  v.  Bower,  1  Dr.  &  Sm.  319. 

8  Pollard  V.  Doyle,  1  Dr.  &  Sm.  319;  Moore  v.  Frowd,  3  Myl.  &  Cr. 
46;  Frazer  v.  Palmer,  4  Y.  &  C.  515;  York  v.  Brown,  1  Col.  C.  C.  260; 
Broughton  v.  Broughton,  5  De  G.,  M.  &  G.  160;  In  re  Sherwood,  3  Beav. 
338;  Douglass  v.  Archbutt,  2  De  G.  &  J.  148;  Harbin  v.  Darby,  28  Beav. 
325;  Morgan  v.  Homans,  49  N.  Y.  667;  Gomley  v.  Wood,  9  Jr.  Eq.  418; 
Binsse  v.  Paige,  1  Keyes,  87;  IN.  Y.  Decis.  138.  [  Clarkson  v.  Robinson, 
[1900]  2  Ch.  722.    See  contra,  Perkins's  Appeal,  108  Pa.  St.  314.] 

(a)  In  the  United  States,  where  also  Matter  of  Froclich,  107  N.  Y. 

trustees  are  allowed   compensation  S.  173,  122  App.  Div.  440.     "When 

for  care,  custody,  management,  and  it  is  once  admitted  that  a  trustee 

other  ordinary  ser\'ices,  it  is  usual  may  be  paid  for  ordinary  services, 

to  allow  them  reasonable  compensa-  it  is  hard  not  to  admit  also  that  there 

tion  also  for  extraordinary  services,  may  be  circumstances  under  which 

i.  e.,  services  of  a  nature  not  usually  he   may  be   allowed   an   additional 

required  of  a  trustee  and  for  which  sum  for  extraordinary  services  which 

he  would  have  had  the  right  to  em-  it    was    not    his   duty    to    render." 

ploy  another  person.     Turnbull  r.  Holmes,  J.,  in  Turnbull  v.  Pomeroj', 

Pomeroy,  140  Mass.  117,  118;  Willis  140  Mass.  117,  US. 

«. Clymer,66  N.J.  Eq.  284;  Perkins's  On  similar  principles  a  surviving 

Appeal,  108  Pa.  St.  314;  Jarrett  v.  partner,  who  is  not  usually  entitled 

Johnson,  216  111.  212;  Morris  r.  Ellis,  to    compensation    for    services    in 

62  S.  W.  250  (Tenn.  Ch.  App.  1901);  winding  up  the  affairs  of  the  part- 

infrn,  §§  917-919,  and  notes.      See  nership  has  been  allowed  compensa- 

695 


§  433.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

strict,  that  if  the  trustee  has  a  partner,  and  employs  such  part- 
ner, no  charge  can  be  made  by  the  firm ;  ^  but  if  the  trustee  is 
excluded  from  all  participation  in  the  compensation,  the  part- 
ner of  the  trustee  may  be  paid  like  any  other  person  for  similar 
services.^  In  one  case  where  several  trustees  were  made  defend- 
ants, one  of  them,  being  a  solicitor,  conducted  the  defence,  and 
was  allowed  his  full  costs,  it  not  appearing  that  the  costs  were 
increased  by  such  conduct.^  This  case  is  put  upon  the  ground 
that  the  services  were  rendered  under  the  eye  of  the  court,  and 
there  could  be  no  danger  of  collusion;  but  the  case  is  not  ap- 
proved in  England,  and  has  not  been  followed.^  In  the  United 
States,  a  trustee  has  been  refused  compensation  as  solicitor,  for 
professional  services  rendered  by  himself  for  himself  as  trus- 
tee, on  the  ground  that  no  man  can  make  a  contract  with 
himself.^ 

§  433.  Under  no  circumstances  can  a  trustee  claim  or  set  up 
a  claim  to  the  trust  property  adverse  to  the  cestui  que  trust.^ 

1  Collin  V.  Carey,  2  Beav.  128;  Lincoln  v.  Winsor,  9  Hare,  158;  Chris- 
tophers V.  White,  10  Beav.  523;  Lyon  v.  Baker,  5  De  G.  &  Sm.  622;  Manson 
V.  BaiUie,  2  Macq.  (H.  L.)  80.  [  See  contra,  Turnbull  v.  Pomeroy,  140 
Mass.  117;  Thayer  v.  Badger,  171  Mass.  279.] 

2  Clack  V.  Carlon,  7  Jur.  (n.  s.)  441;  Burge  v.  Burton,  2  Hare,  373. 

3  Cradock  v.  Piper,  1  McN.  &  G.  664;  1  Hall  &  T.  617;  overruling  Bain- 
brigge  v.  Blair,  8  Beav.  588. 

*  Lyon  V.  Baker,  5  De  G.  &  Sm.  622. 

*  Mayer  v.  Galluchet,  6  Rich.  Eq.  2;  Jenkins  v.  Fickling,  4  Des.  470; 
Edmonds  v.  Crenshaw,  Harp.  232.     [  See  note  a,  supra.] 

"  Att.  Gen.  v.  Monro,  2  De  G.  &  Sm.  163;  Stone  v.  Godfrey,  5  De  G., 
M.  &  G.  76;  Frith  v.  Curtland,  2  Hem.  &  M.  417;  Pomfret  v.  Winsor,  2 
Ves.  476;  Kennedy  v.  Daley,  1  Sch.  &  Lef.  381;  Ex  parte  Andrews,  2  Rose, 
412;  Conry  v.  Caulfield,  2  B.  &  B.  272;  Newsome  v.  Flowers,  30  Beav.  461; 
Shields  v.  Atkins,  3  Atk.  560;  Langley  v.  Fisher,  9  Beav.  90;  Reece  v.  Frye, 

tion  for  necessary  services  which  lay  In  some  States  it  is  expressly  pro- 

outside  his  duty  as  surviving  part^  vided  by  statute  that  trustees  shall 

ner.    Vanduzer  v.  McMillan,  37  Ga.  receive  compensation  for  such  ser- 

299;  Starr  v.   Case,   59  Iowa,  491,  vices  in  addition  to  that    allowed 

503;  Thayer  v.  Badger,  171   Mass.  for  their  ordinary  services.     Infra, 

279.  §§  917-919  and  notes. 

696 


CHAP.  XIV.]  ADVERSE    CLAIMS.  [§  433. 

Xor  can  he  deny  his  title.'  If  a  trustee  desires  to  set  up  a  title 
to  the  trust  property  in  himself,  he  should  refuse  to  accept  the 
trust.  But  if  a  claim  is  made  upon  him  by  a  third  person,  ad- 
verse to  the  cestui  que  trust,  he  may  decline  to  deliver  over  the 
property  to  his  cestui  que  trust  until  the  title  is  determined,  or 
he  is  indemnified  or  secured  against  the  consequences,^  or  he 
may  pay  the  fund  into  court,^  and  if  he  neglects  to  do  so,  and 
thus  makes  a  suit  necessary,  he  will  recover  only  such  costs  as 
he  would  have  been  entitled  to  if  he  had  paid  the  money  into 
court.*  A  trustee  must  assume  the  validity  of  the  trust  under 
which  he  acts,  until  it  is  actually  impeached,  although  he  may 
have  some  suspicion  that  there  may  have  been  fraud  or  collu- 
sion in  the  appointment  and  settlement.^  (a)  So,  if  a  trustee 
obtains  a  knowledge  of  facts  that  would  defeat  the  title  of  his 
cestui  que  trust,  and  give  the  property  over  to  another,  he  is  not 
justified  in  morals  in  communicating  such  facts  to  such  other 
person.  His  duty  is  to  manage  the  property  for  his  cestui  que 
trust,  and  not  to  keep  his  conscience,  or  betray  his  title  or  inter- 
ests;^ and  he  can  make  no  admissions  prejudicial  to  the  rights 
of  his  cestui  que  trust,''  nor  can  he  use  his  influence  to  defeat 
the  purposes  of  the  trust  as  declared  by  the  creator  of  it.^  (6) 

1  Dc  G.  &  Sm.  279;  Benjamin  v.  Gill,  4.5  Ga.  110.  [  Owncs  v.  Ow-nes,  23 
N.  J.  Eq.  60.  As  to  purchase  of  incumbrance  or  adverse  interest  see  supra, 
§  19.5,  note.] 

'  Von  Hurter  v.  Spergeman,  2  Green,  Ch.   185.     [  Associate  Alumni 
V.  General  Tlieol.  Seminary,  49  N.  Y.  S.  745.] 

2  Neale  v.  Davies,  5  De  G.,  M.  &  G.  258. 

3  Gunnoll  v.  Whitear,  L.  R.  10  Eq.  664. 

*  Ibid.;  Weller  v.  Fitzhugh,  22  L.  T.  (n.  s.)  567. 

*  Beddoes  v.  Pugh,  26  Beav.  407;  Reid  v.  Mullins,  48  Mo.  344. 
«  Lewin,  234. 

^  Thomas  v.  Bowman,  30  111.  34;  29  111.  426. 
8  Ellis  V.  Barker,  L.  R.  7  Ch.  104. 

(o)  A  party  to  a  contract,  who  cannot  allege  the  invahdity  of  his 

seeks  to  be  relieved  therefrom,  and  appointment   as   a   reason   for   not 

relies  upon  its  illegality  or  want  of  accounting  for  the  trust   property, 

consideration,  may  be  estopped  from  Harbin  !•.  Bell,  54  Ala.  389;  Saunders 

setting  up  such   a  defence,   and   a  v.  Ricliard,  35  Fla.  28,  42. 
trusteewho  hasaccepted  and  entered  (h)  ^^'here  a  creditor  of  the  cestui 

upon  the  administration  of  the  trust,  is  seeking  to  reach  the  latter's  inter- 

097 


§  435.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

§  434.  In  England,  a  trustee,  being  in  possession  of  real  estate 
in  trust,  may  profit  from  his  trust  if  the  cestui  que  trust  dies 
without  heirs;  for,  as  the  trustee  is  tenant  in  possession,  there 
is  no  such  failure  of  a  tenant  as  to  cause  an  escheat;  and  the 
trustee  thenceforth  holds  the  lands  for  his  own  use,  there  being 
no  cestui  que  trust  to  call  him  to  an  account.^  This  is  a  benefit 
to  the  trustee;  but  it  arises  rather  from  an  absence  of  right  in 
others,  than  from  an  affirmative  right  in  himself.  But  if  he  is 
not  in  possession,  or  if  he  has  need  of  the  assistance  of  a  court 
of  equity  to  enforce  his  rights,  the  court  will  not  act;  ^  though  it 
is  said,  that  having  the  legal  title,  which  a  court  of  law  must 
recognize,  he  can  obtain  all  the  rights  which  a  court  of  law  must 
give.^  But  if  the  cestui  que  tru^t  devise  the  estate  to  another 
upon  trusts  that  fail,  the  trustee  must  pass  over  the  estate  to 
the  devisee,  for  the  reason  that  the  trustee  can  have  no  advan- 
tage from  trusts  that  so  fail,  and  he  has  no  equity  against  the 
devisee  to  keep  the  estate.* 

§  435.  Upon  this  rule  of  law  in  England,  several  questions 
were  started  in  the  case  of  Burgess  v.  Wheate,^  which  are  rather 
curious  than  practical  in  this  country;  as,  for  instance,  if  a 
purchaser  should  pay  the  money  in  full  for  land,  and  die  with- 
out heirs,  before  he  obtained  a  conveyance,  could  the  vendor 
keep  both  land  and  purchase-money?  ^    Again,  if  a  mortgagor  in 

1  Burgess  v.  Wheate,  1  Eden,  177,  186,  216,  256;  Taylor  t;.  Haygarth, 
14  Sim.  8;  Daval  v.  New  River  Co.,  3  De  G.  &  Sm.  394;  Cox  v.  Parker, 
22  Beav.  168;  Barrow  t'.  Wadkin,  24  Beav.  9;  Att.  Gen.  v.  Sands,  Hard. 
496. 

2  Burgess  v.  Wheate,  1  Eden,  212;  Onslow  v.  Wallis,  1  McN.  &  G.  506; 
Williams  v.  Lonsdale,  3  Ves.  Jr.  752. 

3  King  V.  Coggan,  6  East,  431;  2  Smith,  417;  King  v.  Wilson,  10  B.  & 
C.  80. 

*  Onslow  V.  Wallis,  1  McN.  &  G.  506;  Jones  v.  Goodchild,  3  P.  Wms. 
33. 

5  1  Eden,  177. 

•  Ibid.  212. 

est  in  the  trust  property,  the  trustee     sary  legal  steps.    Kutz  v.  Nolan,  224 
cannot  safely  waive  any  of  the  neces-     Pa.  St.  262. 

698 


CIlAl'.  XIV. J  TRUSTEES   CAN    MAKE    NO    PROFIT.  [§  437  G. 

fee  should  die  without  heirs,  could  a  mortgagee  in  fee  keep  the 
whole  estate,  for  the  reason  that  there  was  no  person  having  a 
right  to  redeem?  '  Of  course  the  equity  of  redemption  would 
be  assets  for  the  payment  of  the  debts  of  the  mortgagor.^  But 
if  there  were  no  debts,  could  the  mortgagee  keep  a  large  estate 
for  a  small  debt?  ^  Another  question  was  raised,  whether  a 
trust  in  such  cases  might  not  result  to  the  grantor."*  No  answers 
have  been  given  to  these  questions  by  decided  cases,  and  as  they 
were  put  more  than  a  century  ago,  it  is  not  probable  that  a  case 
will  arise  requiring  their  judicial  determination. 

§  436.  In  the  United  States,  if  a  cestui  que  trust  should  die 
without  heirs,  the  trustee  could  not  hold  for  his  own  beneficial 
use;  but  he  would  hold  for  the  State  as  ultima  hceres  where  all 
other  heirs  fail.^ 

§  437.  Where  a  cestui  que  trust  of  chattel  dies  without  heirs, 
the  trustee  can  take  no  benefit;  for  the  beneficial  use  in  such 
chattel  will  go  as  bona  vavantia  to  the  crown  or  State.  So,  if  the 
cestui  que  trust  makes  a  will  and  appoints  an  executor,  but 
makes  no  further  disposition  of  his  personalty,  the  executor  will 
take  for  the  State;  for  the  executor  can  take  no  beneficial  inter- 
est unless  the  will  expressly  gives  it  to  him.® 

§  437  aJ  Payment  of  a  trust  debt  by  crediting  the  trustee's 
individual  account  is  not  good.*    A  trustee  may  in  good  faith 

»  Ibid.  210. 

'  Beale  v.  Symonds,  16  Beav.  406;  Downe  v.  Morris,  3  Hare,  394. 

«  1  Eden,  236,  256. 

•  1  Eden,  185. 

»  McCaw  V.  Galbraith,  7  Rich.  L.  75;  Matthews  i-.  Ward,  10  G.  &  J. 
443;  Darrah  v.  McNair,  1  Ashm.  236;  Ringgold  v.  Malott,  1  Harr.  &  John. 
299;  4  Kent,  425;  1  Cruise,  Dig.  484;  Crane  v.  Reeder,  21  Md.  25. 

•  Middleton  i-.  Spicer,  1  Bro.  Ch.  201;  Taylor  v.  Haygarth,  14  Sim.  8; 
Russell  V.  Clowes,  2  Col.  C.  C.  648;  Powell  v.  Merritt,  1  Sm.  &  Gif.  381; 
Cradock  v.  Owen,  2  Sm.  &  Gif.  241;  Read  v.  Steadham,  26  Beav.  495, 
Cane  v.  Roberts,  8  Sim.  214. 

T  See  §§  815  a,  815  b. 

•  Maynard  i'.  Cleveland,  76  Ga.  52. 

699 


§  437  a.]  GENERAL   DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

compromise  a  doubtful  debt  due  the  trust  estate,  and  a  fraud 
committed  by  him  upon  others  is  admissible  to  show  his  zeal 
for  the  interests  of  the  estate.^  But  a  compromise  of  a  debt  due 
from  the  trust  by  which  an  advantage  is  gained,  as  where  a 
legatee  accepted  $1100  for  a  $3000  legacy,  inures  to  the  benefit 
of  the  trust  estate,  and  the  trustee  cannot  transfer  the  whole 
gain  to  one  of  the  cestuis.^  A  trustee  to  sue  for  and  recover 
certain  property  may  make  a  fair  and  judicious  compromise  by 
which  the  title  is  secured  to  the  cestui.^  Church  trustees  cannot, 
by  their  acts,  create  any  lien  on  the  trust  property  unless  they 
have  express  authority  for  so  doing.*  A  trustee  can  be  held 
personally  for  materials  ordered  by  him  for  the  trust  estate, 
and  on  contracts  made  by  him  in  its  behalf,  unless  there  be  a 
special  agreement  to  look  only  to  the  trust,  and  this  even  though 
the  trustees  acted  under  order  of  the  court,  this  being  merely  a 
security  to  the  trustee  that  he  shall  be  indemnified  out  of  the 
trust  funds.^  (a)    But  the  mere  fact  of  want  of  authority  in  a 


1  Id.  68  et  seq. 

'  Mitchell  V.  Colburn,  61  Md.  244. 

'  Caldwell  v.  Brown,  66  Md.  293. 

*  Trustees  First  M.  E.  Church  v.  Atlanta,  76  Ga.  181. 

«  Gill  V.  Carmine,  55  Md.  339;  Hackman  v.  MaGuire,  20  Mo.  App. 
286;  People  v.  Abbott,  107  N.  Y.  225;  Kedian  v.  Hoyt,  33  Hun,  145.  [  Dant- 
zler  V.  Mclnnis,  151  Ala.  293;  Johnson  v.  Leman,  131  111.  609;  Hussey  v. 
Arnold,  185  Mass.  202;  McGovem  v.  Bennett,  146  Mich.  558;  Truesdale 
V.  Philadelphia  Tr.  Co.,  63  Minn.  49;  Koken  Iron  Works  v.  Kinealy,  86  Mo. 
App.  199;  Blewitt  v.  Olin,  14  Daly,  351;  Mitchell  v.  Whitlock,  121  N.  C.  166; 
Fehlinger  v.  Wood,  134  Pa.  St.  517;  Neal  v.  Bleckley,  51  S.  C.  506;  Mc- 
Intyre  v.  Williamson,  72  Vt.  183;  Taylor  v.  Davis,  110  U.  S.  330,  334; 
Brazier  v.  Camp,  63  L.  J.  Q.  B.  257.] 

(o)  A  trustee  is  likewise  person-  Mass.  292;  O'Malley  v.  Gerth,  67  N. 

ally  liable  to  third  persons  for  his  J.  Law,  610;  GiUick  v.  Jackson,  83 

torts  either  of  misfeasance  or  of  non-  N.  Y.  S.  29;  Norling  v.  Allee,  13  N. 

feasance  in  faihng  to  keep  the  trust  Y.  S.  791.     See  Brown  v.  Wittner, 

property  in   repair,   irrespective  of  59  N.  Y.  S.  385,  43  App.  Div.  135. 

his  right  to  reimbursement.    Baker  In  re  Raybould,  [1900]  1  Ch.  199; 

V.  Tibbetts,  162  Mass.  468;  Shepard  Prinz  v.  Lucas,  210  Pa.  St.  620.    And 

V.  Creamer,  160  Mass.  496;  Odd  Fel-  also  for  the  torts  of  his  agents.  Blew- 

lows  Hall  Ass'n  v.  McAllister,  153  itt  v.  Olin,  14  Daly  (N.  Y.)  351.    As 

700 


CHAP.  XIV.] 


LIABILITY    TO    CREDITORS. 


[§  437  a. 


trustee  to  bind  the  estate  will  not  make  him  personally  liable 
in  cases  of  executory  contract  where  the  facts  show  that  no  such 


to  the  liability  of  trustees  of  char- 
itable funds  for  torts  of  employees 
and  agents,  see  infra,  §  747, 
note. 

He  may  undoubtedly  relieve  him- 
self from  p)er8onal  liability  upon  hiis 
contracts  for  the  benefit  of  the 
trust  by  a  special  provision  in  the 
contract.  Packard  v.  Kingman,  109 
Mich.  497;  Mitchell  v.  Whitlock,  121 
N.  C.  166;  Kohen  Iron  Works  v. 
Kinealy,  86  Mo.  App.  199;  Hussey  i'. 
Arnold,  185  Mass.  202.  But  de- 
scription of  himself  as  trustee  is  not 
sufficient.  Taylor  v.  Davis,  110  U. 
S.  330,  335;  Connally  v.  Lyons,  82 
Tex.  664;  Mclntyre  v.  Williamson, 
72  Vt.  183;  McGovern  t;.  Bennett, 
146  Mich.  558;  Tuttle  v.  First  Nat. 
Bank,  187  Mass.  533.  Thus  it  has 
been  held  that  a  trustee  with  author- 
ity to  mortgage  who  describes  him- 
self in  the  mortgage  note  as  trustee 
and  puts  the  word  "trustee"  after 
his  signature  is  nevertheless  per- 
sonally liable  upon  the  note.  Hall 
V.  Jameson,  151  Cal.  606.  But  a 
description  of  himself  in  the  con- 
tract as  trustee  is  doubtless  some  evi- 
dence of  an  agreement  with  the 
other  party  that  he  shall  not  be  per- 
sonally liable.  See  Crate  v.  Luip- 
pold,  43  N.  Y.  S.  824,  13  App.  Div. 
617. 

Most  courts  do  not  recognize  a 
liability  of  a  trustee  in  his  represent- 
ative capacity.  Johnson  v.  Leman, 
131  111.  609;  Shepard  v.  Creamer,  160 
Mass.  496;  Truesdale  v.  Philadel- 
phia Trust  Co.,  63  Minn.  49;  Hamp- 
ton V.  Foster,  127  Fed.  468.  But  see 
Yerkes  v.  Richards,  170  Pa.  St.  346; 
Prinz   V.   Lucas,   210   Pa.   St.   620; 


Scheibeler  v.  Albee,  99  N.  Y.  S.  706, 
114  App.  Div.  146;  Ferrier  v.  Tr6- 
pannier,  24  Can.  Sup.  86. 

A  trustee's  liability  as  stock- 
holder for  calls,  etc.,  is  a  personal 
one,  but,  in  most  States  has  been 
limited  by  statute  to  the  trust  prop- 
erty. See  U.  S.  Rev.  Stats.,  §  5152, 
as  to  national  banks;  Pauly  v.  State 
Loan  &  Trust  Co.,  165  U.  S.  606; 
Hampton  i;.  Foster,  127  Fed.  468; 
Fowler  v.  Cowing,  152  Fed.  801, 
holding  that  in  New  York  an  action 
against  a  trustee  stockholder  in  an 
insolvent  bank  must  be  brought 
against  him  as  trustee. 

As  to  the  rights  of  creditors  to 
resort  to  the  trust  property,  see 
infra,  §  815  6,  and  note. 

A  substituted  trustee  is  of  course 
not  personally  liable  for  the  torts  of 
his  predecessor  or  for  the  latter's 
contracts  for  the  benefit  of  the  trust 
estate  unless  he  assumes  them,  and 
his  acceptance  of  the  trust  is  not  in 
itself  an  assumption  of  the  previous 
trustee's  obligations.  Foote  v.  Cot- 
ting,  195  Mass.  55;  U.  S.  Trust  Co. 
V.Stanton,  139N.  Y.  531. 

It  has  been  held  by  a  divided 
court  that  three  cotrustees  who  con- 
tinued the  business  of  the  testator 
under  a  firm  name  for  the  benefit  of 
the  trust  estate  were  not  copartners 
since  they  were  not  beneficially  in- 
terested in  the  business,  and  that  a 
retiring  cotrustee  had  no  duty  of 
giving  notice  of  his  retirement  to 
those  having  credit  dealings  with  the 
business.  Failing  to  give  notice  of 
his  retirement  he  was  nevertheless 
held  not  to  be  liable  on  contracts 
with  a  prior  dealer  who  did  not  know 

701 


§  437  b.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

liability  was  intended  by  either  of  the  parties.^  A  trustee  with 
absolute  control  can  give  a  license  for  his  life  to  a  railway  com- 
pany to  use  the  land  for  a  roadbed.^  A  trustee  cannot  go 
beyond  the  purposes  of  the  trust  deed  and  bind  the  estate.^ 

§  437  b.  Though  "trustee"  be  added  to  the  signature  of  a 
note  or  bond  it  may  be  mere  descriptio  persoms,  and  the  obliga- 
tion individual.^  And,  on  the  other  hand,  although  the  signa- 
ture of  a  receipt  be  merely  that  of  the  trustee  as  an  individual, 
the  receipt  may  be  really  given  as  trustee  and  bind  the  cestui^} 
A  note,  though  not  signed  as  trustee,  will,  as  between  the  cestui 
and  the  trustee,  be  the  obligation  of  the  former  if  the  debt  was 
properly  incurred  for  its  benefit.® 

'  Michael  v.  Jones,  84  Mo.  578.  [  Fehlinger  v.  Wood,  134  Pa.  St.  517, 
523.] 

2  Tutt  V.  R.  R.  Co.,  16  S.  C.  365. 

3  Pracht  &  Co.  v.  Lange,  81  Va.  711. 

<  Cruselle  v.  Chastain,  76  Ga.  840;  Bowen  v.  Penny,  id.  743.  [  Hall  v. 
Jameson,  151  Cal.  606.] 

'  Thomassen  v.  Van  Wyngaarden,  65  Iowa,  689. 
•  Bushong  V.  Taylor,  82  Mo.  660. 

he  had  retired.  Noyes  v.  Tumbull,  Wells-Stone  Co.  v.  Grover,  7  N.  D. 
54  Hun,  26, 130  N.  Y.  639.    See  also     460,  41  L.  R.  A.  252. 


702 


CHAP.  XV.J  POSSESSION,    ETC.  [§  438. 


CHAPTER   XV. 

POSSESSION  —  CUSTODY  —  CONVERSION  —  INVESTMENT  OF  TRUST 
PROPERTY,  AND  INTEREST  THAT  TRUSTEES  MAY  BE  MADE  TO 
PAY. 

§  438.    Duty  of  trustee  to  reduce  the  trust  property  to  possession. 

§  439.  Time  within  which  possession  should  be  obtained. 

§ '440.  Diligence  necessary  in  acquiring  possession. 

§  441.    The  care  necessary  in  the  custody  of  trust  projierty. 

§  442.  In  what  manner  certain  property  should  be  kept. 

§  443.  Where  the  property  may  be  deposited. 

5§  444,  445.       How  money  must  be  deposited  in  bank. 

§  446.  Within  what  time  trustee  should  wind  up  testator's  establish- 

ment. 

§  447.  Trustee  must  not  mix  trust  property  with  his  own. 

§  448.    When  a  trustee  is  to  convert  trust  property. 

§  449.  General  rule  as  to  conversion. 

§  450.  When  a  court  presumes  an  intention  that  property  is  to  be 

converted. 

§  451.  When  the  court  presumes  that  the  property  is  to  be  enjoyed 

by  cestui  que  trust  in  specie. 

§  452.    Of  investment. 

§  453.  As  to  investment  in  personal  securities. 

§  454.  As  to  the  employment  of  trust  property  in  trade,  business,  or 

speculation. 

§  455.  Rule  as  to  investments  in  England. 

§  456.  Rule  in  the  United  States. 

§§  457,  458.   Rule  as  to  real  securities. 

§  459.  Of  investments  in  the  different  States. 

§§  460,  461 .   Construction,  where  the  instruments  of  trust  direct  how  invest- 
ments may  be  made. 

§  462.  Within  what  time  investments  must  be  made. 

§  463.        Trustees  must  not  mingle  their  own  money  in  investments. 

§  464.  Must  not  use  the  trust-money  in  business. 

§  465.  Original  investments  and  investments  left  by  the  testator. 

§  466.  Changing  investments. 

§  467.  Acquiescence  of  cestui  que  trust  in  improper  investments. 

§  468.    Interest  that  trustees  must  pay  upon  trust  funds  on  any  derelic- 
tion of  duty. 

§  469.  When  he  is  directed  to  invest  in  a  particular  manner. 

703 


§  438.]  POSSESSION.  [chap.  XV. 

§  470.  When  he  improperly  changes  an  investment. 

§  471 .  When  compound  interest  will  be  imposed,  and  when  other  rules 

will  be  applied. 
§  472.  Rule  where  an  accumulation  is  directed. 

§  438.  The  first  duty  of  a  trustee,  after  his  appointment  and 
qualification  to  act,  is  to  secure  the  possession  of  the  trust  prop- 
erty and  to  protect  it  from  loss  and  injury.  Until  possession  is 
properly  taken  by  the  trustee  the  grantor  is  entitled  to  the 
profits  of  the  estate.^  If  the  trust  property  is  an  equitable 
interest  or  estate,  he  must  give  notice  to  the  holder  of  the  legal 
title;  and  if  he  cannot  have  the  legal  title  transferred  to 
himself,  he  must  take  such  steps  that  no  incumbrances  can  be 
put  upon  it  by  the  settlor  or  assignor.  If  the  trust  fund  con- 
sists in  part  of  notes,  bonds,  policies  of  insurance,  and  other 
similar  choses  in  action,  notice  should  be  given  to  the  promisors, 
obligors,  or  makers  of  the  instruments.  This  is  the  general  rule 
in  England  and  in  many  of  the  United  States.^  (a)      In  some 

1  Frayser  v.  Rd.  Co.,  81  Va.  388. 

*  Jacob  V.  Lucas,  1  Beav.  436;  Wright  v.  Dorchester,  3  Russ.  49,  n.; 
Timson  v.  Ramsbottom,  2  Keen,  35;  Forster  v.  Blackstone,  1  Myl.  &  K. 
297;  Roofer  v.  Harrison,  2  K.  &  J.  86;  Loveredge  v.  Cooper,  3  Russ.  30; 
Dearie  v.  Hall,  id.  1;  Meux  v.  Dell,  1  Hare,  73;  Stocks  v.  Dobson,  4  De 
G.,  M.  &  G.  11;  Voyle  v.  Hughes,  2  Sm.  &  Gif.  18;  Ryall  v.  Rowles,  1  Ves. 
348;  1  Atk.  165;  Dow  v.  Dawson,  1  Ves.  331;  3  Lead.  Cas.  Eq.  612;  Jones 
V.  Gibbons,  9  Ves.  410;  Thompson  v.  Spiers,  13  Sim.  469;  Waldron  v.  Sloper, 
1  Drew.  193;  Ex  parte  Boulton,  1  De  G.  &  J.  163;  Pierce  v.  Brady,  23  Beav. 
64;  Martin  v.  Sedgwick,  9  Beav.  333;  Evans  v.  Bicknell,  6  Ves.  174;  Dun- 
Bter  V.  Glengall,  3  Ir.  Eq.  47;  Forster  v.  Cockerell,  9  Bligh  (n.  s.),  332,  3  CI 

6  Fin.  456;  Feltham  v.  Clark,  1  De  G.  &  Sm.  307;  In  re  Atkinson,  2  De  G., 
M.  &  G.  140;  Mangles  v.  Dixon,  18  Eng.  L.  &  Eq.  82;  Brashear  v.  West, 

7  Pet.  608;  Stewart  v.  Kirkland,  19  Ala.  162;  Cummings  v.  Fullam,  13  Vt. 
134;  Northampton  Bank  v.  Balliet,  8  Watts  &  S.  311;  Bean  v.  Simpson,  4 
Shep.  49;  Phillips  v.  Bank  of  Lewistown,  18  Penn.  St.  394;  Laughlin  v.  Fair- 
banks, 8  Mo.  367;  Campbell  i-.  Day,  16  Vt.  358;  Barney  v.  Douglass,  19  Vt. 
98;  Ward  v.  Morrison,  25  Vt.  593;  Loomis  v.  Loomis,  2  Vt.  201;  Adams  v. 

(a)  In  these  jurisdictions  an  as-  Morgan,  110  Md.  1;  Low  v.   Bou- 

signment  of   a   cestui' s  interest    in  verie,     [1891]    3    Ch.    82;     In    re 

personalty   or  income    takes   effect  Wyatt,  [1892]  1  Ch.  188;  Stephens 

as  between  assignees  at    the    date  v.  Green,  [1895]  2  Ch.  148. 
of  notice  to  the  trustee.    Lambert  v. 

704 


CHAP.  XV.l  COLLECTION.  [§  438. 

States,  however,  it  is  held  that  an  assignment  of  a  chose  in  action 
is  complete  in  itself  when  the  assignor  and  assignee  have  com- 
pleted the  transfer,  and  that  notice  to  the  debtor  is  not  neces- 
sary in  order  to  make  the  assif,'nment  valid  as  against  third 
persons,  or  attaching  creditors,  or  subsequent  assignees  without 
notice.^  But  it  seems  to  be  agreed  in  all  the  cases,  that,  if  the 
debtor  without  notice  and  in  good  faith  pays  the  debt  to  the 
assignor,  it  will  be  a  good  payment,  and  discharge  him  from 
further  liability  i^  but  if  he  should  pay  after  notice  he  would  still  be 

Leavens,  20  Conn.  73;  Van  Buskirk  v.  Ins.  Co.,  14  Conn.  14.5;  Foster  v. 
Mix,  20  Conn.  395;  Bishop  v.  Ilalcomb,  10  Conn.  444;  Woodbridge  v.  Per- 
kins, 3  Day, 364;  Judah  v.  Judd,  5  Day,  534;  Murdock  v.  Finney,  21  Mo.  138; 
Cladfield  v.  Cox,  1  Sneed,  330;  Fisher  v.  Knox,  13  Penn.  St.  622;  Judson 
V.  Corcoran,  17  How.  614.  But  see  Bcavan  v.  Oxford,  6  De  G.,  M.  &  G. 
507;  Kekewich  v.  Manning,  1  Dc  G.,  M.  &  G.  176;  Clack  v.  Holland,  24  L.  J. 
19;  Barr's  Trusts,  4  K.  &  J.  219;  Scott  t-.  Hastings,  id.  633;  Bridge  t;.  Beadon, 
L.  R.  3  Eq.  664;  In  re  Brown's  Trusts,  L.  R.  5  Eq.  88;  Lloyd  v.  Banks, 
L.  R.  4  Eq.  222 ;  3  Ch.  488.  [  Low  v.  Bouverie,  [1891  ]  3  Ch.  82 ;  In  re  Wyatt, 
[1892]  1  Ch.  188;  Stephens  v.  Green,  [1895]  2  Ch.  148;  Re  Patrick,  39  W. 
R.  113;  Graham  Paper  Co.  v.  Pembroke,  124  Cal.  117;  Lambert  r.  Morgan, 
110  Md.  1;  Houser  v.  Richardson,  90  Mo.  App.  134;  Jack  t-.  National  Bank, 
17  Okla.  430;  Phillips's  Estate,  205  Pa.  St.  525;  Dillingham  t'.  Traders' 
Ins.  Co.,  120  Tenn.  302.  See  also  Goldthwaite  v.  Nat.  Bank,  67  Ala.  549, 
554;  Tison  v.  People's  Sav.  &  L.  Ass'n,  57  Ala.  323,  331;  Duke  v.  Clark, 
58  Miss.  465,  474;  WilUams  v.  Donnelly,  54  Neb.  193;  Starr  v.  Haskins, 
26  N.  J.  Eq.  414;  Tate  v.  Security  Co.,  63  N.  J.  Eq.  559,  561;  Ga.  Code 
(1895),  §  3077;  1  Ames'  Cases  on  Trusts  (2d  ed.),  326.] 

'  Sharpless  v.  Welch,  4  Dall.  279;  Bholen  v.  Cleveland,  1  Mason,  174; 
Dix  V.  Cobb,  4  Mass.  508;  Wood  v.  Partridge,  11  Mass.  488;  Warren  v. 
Copelin,  4  Met.  594;  Littlefield  v.  Smith,  17  Me.  327;  Corscr  v.  Craig,  1 
Wash.  C.  C.  24;  United  States  v.  Vaughn,  3  Binn.  394;  Muir  v.  Schenk, 
3  Hill,  228;  Talbot  v.  Cook,  7  Mon.  438;  Maybin  v.  Kirby,  4  Rich.  Eq. 
105;  Stevens  v.  Stevens,  1  Ashm.  590;  Beckwith  v.  Union  Bank,  5  Seld. 
211;  Conway  v.  Cutting,  50  N.  H.  408;  Garland  v.  Harrington,  51  N.  H. 
409.  [  Columbia  Finance  &  Tr.  Co.  v.  First  Nat.  Bank,  116  Ky.  364,  375; 
Putnam  v.  Story,  132  Mass.  205,  211;  Whittredge  (;.  Sweetzer,  189  Mass. 
45;  Thayer  v.  Daniels,  113  Mass.  129;  Central  Trust  Co.  v.  West  India 
Imp.  Co.,  169  N.  Y.  314,  323;  Fairbanks  v.  Sargent,  104  N.  Y.  108,  116; 
Niles  V.  Mathusa,  162  N.  Y.  546,  552;  DowTier  v.  So.  Royalton  Bank,  39 
Vt.  25;  Tingle  v.  Fisher,  20  W.  Va.  497;  Quigley  f.  Welter,  95  Minn.  383 
{aemble).    See  1  Ames'  Cases  on  Trusts  (2d  cd.),  326.] 

2  Reed  v.  Marble,  10  Paige,  509;  Mangles  i-.  Dixon,  18  Eng.  L.  &  Eq. 
82;  1  Mac.  &  G.  446;  3  H.  L.  Cas.  739,  and  cases  before  cited;  Stocks  t;. 
Debson,  4  De  G.,  M.  &  G.  11. 

VOL.  I.  —  45  705 


§  438.]  COLLECTION.  [cHAP.  XV. 

liable  to  the  assignee.^  Under  all  circumstances,  it  is  safer  to  give 
notice  to  the  debtor,  whether  the  courts  of  a  State  hold  notice 
necessary  or  not.  If  the  assignor  receive  the  money  of  the 
debtor  after  the  assignment,  he  will  hold  the  money  in  trust 
for  the  assignee.^  These  general  rules  concerning  notice  do  not 
apply  to  equities  in  real  estate.^  Trustees  should  also  insist 
upon  possession  of  all  the  notes,  bonds,  policies,  and  other  obli- 
gations for  the  payment  of  money  being  delivered  to  them;  for  if 
negligent  in  this  respect,  and  suits  and  costs  arise,  they  might 
be  made  responsible  personally.^  So,  if  there  are  debts  or 
securities  already  due  and  payable  to  the  trust  estate,  the 
trustees  must  proceed  to  collect  them,  (a)  If  any  loss  happens 
to  the  estate  from  any  delay,  they  would  be  responsible,^  and 
they  may  accept  payment  even  before  the  debts  are  due.* 
Where  it  is  important  for  the  trustees  to  give  notice  of  an  assign- 
ment to  them,  notice  to  one  of  several  obligors  is  notice  to  all: 
so  notice  to  one  of  several  of  a  society  of  underwriters  is  suffi- 

*  Brashear  v.  West,  7  Pet.  608,  and  cases  before  cited;  Judson  v.  Cor- 
coran, 17  How.  414. 

2  Ellis  V.  Amason,  2  Dev.  Eq.  273;  Fortesque  v.  Barnett,  3  Myl.  &  K. 
36. 

»  Wilmot  V.  Pike,  5  Hare,  14;  Etty  v.  Bridges,  2  Y.  &  Col.  486;  Ex  parte 
Boulton,  1  De  G.  &  J.  163;  Webster  v.  Webster,  31  Beav.  393;  Stevens 
V.  Venables,  30  id.  625;  Barr's  Trusts,  4  K.  &  J.  219;  Van  Rensalaer  v. 
Stafford,  Hopk.  Ch.  569;  9  Cow.  316;  Poillon  v.  Martin,  1  Sandf.  Ch.  569. 

*  Fortesque  v.  Barnett,  3  Myl.  &  K.  36;  Meux  v.  Bell,  1  Hare,  82;  Evans 
V.  Bicknell,  6  Ves.  174;  Knye  v.  Moore,  1  S.  &  S.  65;  Lloyd  v.  Banks,  L.  R. 
4  Eq.  222;  3  Ch.  488. 

»  Caffrey  v.  Darbey,  6  Ves.  488;  McGachen  v.  Dew,  15  Beav.  84;  Tebbs 
V.  Carpenter,  1  Madd.  298;  Waring  v.  Waring,  3  Ir.  Eq.  335;  Platel  v. 
Craddock,  C.  P.  Coop.  481;  Wiles  v.  Gresham,  2  Drew.  258;  Grove  v.  Price, 
26  Beav.  103;  Rowley  v.  Adams,  2  H.  L.  Cas.  725;  Macken  v.  Hogan,  14 
Ir.  Eq.  220;  Mucklow  v.  Fuller,  Jac.  198;  Powell  v.  Evans,  5  Ves.  839;  Low- 
son  V.  Copeland,  2  Bro.  Ch.  156;  Caney  v.  Bond,  6  Beav.  486;  Cross  v. 
Petree,  10  B.  Mon.  413;  Wolfe  t;.  Washburn,  6  Cow.  261;  Waring  v.  Damall, 
10  G.  &  J.  127;  Hester  v.  Wilkinson,  6  Humph.  215;  Gamer  v.  Moore,  3 
Drew.  277;  NefT's  App.,  57  Penn.  St.  91. 

«  Mills  V.  Osborne,  7  Sim.  30. 

(o)  They  have  implied  power   to   employ  attorneys  for  the  purpose. 
Vilas  t;.  Bundy,  106  Wis.  168. 
706 


CHAP.  XV.]  COLLECTION.  [§  439. 

cient;  and  if  the  obligors  compose  a  corporation,  there  must  be 
notice  to  the  directors  or  trustees  of  the  corporation.'  So,  if 
notice  to  trustees  is  necessary'  in  any  case,  notice  to  one  is 
sufficient.^ 

§  439.  There  is  no  fixed  time  within  which  executors  are  to 
get  in  the  choses  in  action  of  the  testator.  They  must  use  due 
diligence;  and  what  is  due  diligence  depends  upon  the  existing 
facts  in  every  case,  and  a  large  discretion  must  necessarily  be 
vested  in  the  executor.^  If  there  is  property  that  cannot  be 
kept  without  great  expense,  it  should  be  sold  forthwith.  If  the 
testator's  establishment  is  expensive,  it  should  be  broken  up 
within  a  reasonable  time;  and,  under  special  circumstances,  two 
months  were  held  to  be  reasonable.*  If  there  are  shares  or 
stocks  in  corporations,  the  executors  must  exercise  a  sound 
discretion  to  sell  in  the  most  advantageous  manner,  and  at  the 
most  advantageous  time.  In  the  case  of  some  Crystal  Palace 
shares  owned  by  a  testator,  a  sale  within  a  year  was  held  to  be 
the  exercise  of  a  reasonable  discretion,  although  it  was  claimed 
that  they  ought  to  have  been  sold  within  two  months.^  So, 
where  a  large  part  of  an  estate  consisted  of  Mexican  bonds, 
which  the  testator  directed  to  be  converted  "with  all  conven- 
ient speed,"  it  was  held  that  these  words  added  nothing  to  the 
implied  duty  of  every  executor  to  convert  such  property  with 
all  reasonable  speed;  that  a  conversion  in  the  course  of  the 
second  year  was  proper  and  reasonable;  that  if  executors  were 
bound  to  sell  at  once  without  reference  to  the  circumstances, 
there  would  often  be  a  great  sacrifice  of  property,  and  therefore 
that  executors  were  bound  to  exercise  a  reasonable  discretion, 

•  Timson  v.  Ramsbottom,  2  Keen,  35;  Meiix  v.  Bell,  1  Hare,  88;  Re 
Styan,  1  Phill.  155;  Smith  i-.  Smith,  2  Cr.  &  Mee.  31;  Duncan  t'.  Cham- 
berlayne,  11  Sim.  123. 

»  GreenhiU  v.  Willis,  4  De  G.,  F.  &  J.  147. 

»  Waring  i;.  Darnall,  10  G.  &  J.  127;  Hughes  v.  Empson,  22  Beav.  188. 

*  Field  t'.  Pecket,  29  Beav.  576. 

^  Hughes  V.  Empson,  22  Beav.  138;  Bate  v.  Hooper,  5  De  G.,  M.  &  G. 
338;  Wilkinson  v.  Duncan,  26  L.  J.  (n.  s.)  Ch.  495. 

707 


§  440.]  COLLECTION.  [CHAP.  XV. 

according  to  the  circumstances  of  each  case.^  But  generally 
stock  should  be  sold  within  the  year  allowed  for  the  settling  of 
a  testator's  estate,  and  a  delay  beyond  this  time  may  render 
the  executors  or  trustees  liable  for  the  loss,  although  they  act 
in  good  faith,  and  although  some  of  the  trustees  became  of  age 
only  a  short  time  before  the  sale.^  If,  however,  it  is  clear  that 
the  trustees  have  a  discretion  to  sell  or  not  according  to  their 
judgment,  the  case  will  be  governed  by  the  intention  and  not  be 
the  general  rule.^ 

§  440.  Personal  securities  change  from  day  to  day ;  and  as  the 
death  of  the  testator  puts  an  end  to  his  discretion  in  regard  to 
them,  unless  he  has  exercised  it  in  his  will,  the  executor  or 
trustee  will  become  personally  liable,  if  he  does  not  get  in  the 
money  within  a  reasonable  time.'*  He  must  not  allow  the  assets 
to  remain  out  on  personal  security,^  (a)  though  it  was  a  loan 
or  investment  by  the  testator  himself.^  It  is  not  enough  for 
the  executor  to  apply  for  payment  through  an  attorney:    he 

'  Buxton  V.  Buxton,  1  M.  &  C.  80;  Prendergast  v.  Lushington,  5  Hare, 
171;  Hester  v.  Wilkinson,  6  Humph.  215;  Waring  v.  Darnall,  10  G.  &  J. 
127. 

2  Sculthorpe  v.  TiflFer,  L.  R.  13  Eq.  238;  Graybum  v.  Clarkson,  L.  R. 
3  Ch.  605. 

»  Mackie  v.  Mackie,  5  Hare,  70;  Wrey  v.  Smith,  14  Sim.  202;  Sparling 
V.  Parker,  9  Beav.  524. 

♦  Bailey  v.  Young,  4  Y.  &  Col.  Ch.  226;  Will's  App.,  22  Penn.  St.  330; 
Mucklow  V.  Fuller,  Jac.  198;  Tebbs  v.  Carpenter,  1  Madd.  297. 

*  Lowson  V.  Copeland,  2  Bro.  Ch.  156;  Caney  v.  Bond,  6  Beav.  486; 
Att.  Gen.  v.  Higham,  2  Y.  &  Col.  Ch.  634;  Hemphill's  App.,  18  Penn.  St. 
303. 

•  Powell  V.  Evans,  5  Ves.  839;  Bullock  v.  Wheatley,  1  Col.  C.  C.  130; 
Tebbs  V.  Carpenter,  1  Madd.  298;  Clough  v.  Bond,  3  Myl.  &  Cr.  496;  Hemp- 
hill's App.,  18  Penn.  St.  303;  Pray's  App.,  34  id.  100;  Barton's  App.,  1  Pars. 
Eq.  24,  is  overruled;  Kimball  v.  Reading,  11  Foster,  352.  In  England, 
bank  stock  must  be  converted.  Mills  v.  Mills,  7  Sim.  509;  Howe  v.  Dart- 
mouth, 7  Ves.  150;  Price  v.  Anderson,  15  Sim.  473.  [  As  to  continuation  of 
the  testator's  investments,  see  injra,  §  465  and  notes.] 

(a)  Unless  so  directed  or  author-  ike  v.  Harris,  84  N.  Y.  89,  reversing 
ized  by  the  creator  of  the  trust.  Den-     s.  c.  23  Hun,  213. 

708 


CHAP.  XV.]  COLLECTION.  [§  440. 

must  follow  the  collection  actively  by  legal  proceedings/  unless 
he  can  show  that  such  proceedings  would  have  been  futile  and 
vain.^  An  executor  must  take  the  same  steps  when  his  co- 
executor  is  a  debtor  to  the  estate,  even  if  the  testator  has  been 
in  the  habit  of  depositing  or  lending  money  to  the  coexecutor 
as  to  a  banker.^  Executors  are  not  justified  in  dealing  with  a 
testator's  money  as  he  dealt  with  it  himself,  nor  may  they  trust 
all  the  persons  that  he  trusted.  Nor  will  a  direction  in  the  will 
"to  call  in  securities  not  approved  by  them"  excuse  executors 
from  not  calling  in  personal  securities;  for  such  direction  refers 
to  the  different  kinds  of  securities  sanctioned  by  law  and  the 
court,  and  not  to  all  investments  outside  the  sanctions  of  the 
law.^  If  the  executors  are  to  get  in  the  money  "whenever  they 
think  proper  and  expedient,"  they  will  be  liable  for  the  fund  if 
they  allow  it  to  remain  uncollected  out  of  kindness  or  regard 
for  the  tenant  for  life,  and  not  upon  an  impartial  judgment  for 
the  best  interest  of  all  the  parties.^  If  the  outstanding  debt  is 
secured  by  a  real  mortgage,  it  ought  not  to  be  called  in,  if  it  is 
safe,  until  it  is  wanted  in  the  course  of  the  administration.® 
But  pains  should  be  taken  to  ascertain  whether  the  security  is 
safe.^  If  the  mortgage  security  is  not  adequate,  the  executor  or 
trustee  must  insist  upon  payment,  even  where  the  cestui  que 
trust  is  to  consent  to  every  change  of  investment,  and  he  refuses 
to  consent;  for  nothing  will  justify  conduct  that  endangers  the 

'  Lowson  V.  Copcland,  2  Bro.  Ch.  156;  Horton  v.  Brocklchurst,  29  Bcav. 
511;  Paddon  r.  Richardson,  7  De  G.,  M.  &  G.  563;  Wolfe  v.  Washburn,  6 
Cow.  261. 

2  Clack  V.  Holland,  19  Beav.  262;  Hobday  v.  Peters,  2S  id.  603;  Alex- 
ander V.  Alexander,  12  Ir.  Eq.  1;  Maitland  v.  Bateman,  16  Sim.  233,  and 
note;  Walker  v.  Symonds,  3  Swanst.  71;  East  i-.  East,  5  Hare,  343;  Rat- 
cliff  ('.  Wynch,  17  Bcav.  217;  Ball  v.  Ball,  11  Ir.  Eq.  370;  Styles  v.  Guy,  16 
Sim.  232;  Billing  v.  Brogden,  38  Ch.  D.  546. 

3  Styles  V.  Guy,  1  Mac.  &  G.  428;  1  Hall  &  Tw.  523;  Egbert  v.  Butter, 
21  Beav.  560;  Candler  r.  Tillett,  22  Beav.  257;  Mucklow  v.  Fuller,  Jac.  198. 

*  Styles  V.  Guy,  1  Mac.  &  G.  428;  Scully  t-.  Delany,  2  Ir.  Eq.  165. 
s  Luther  v.  Bianconi,  10  Ir.  Ch.  194. 

•  Orr  I'.  Newton,  2  Cox,  274;  Howe  v.  Dartmouth,  7  Ves.  150;  Robin- 
son V.  Robinson,  1  De  G.,  M.  &  G.  252. 

'  Ames  V.  Parkinson,  7  Beav.  384. 

709 


§  441.]  CUSTODY.  [chap.  XV. 

fund.'  (a)  But  if  the  fund  is  safe  on  a  security  sanctioned  by 
the  court  and  selected  by  the  testator,  it  might  be  a  breach  of 
trust  to  call  it  in,  and  allow  it  to  remain  unproductive,  or  to 
invest  it  anew.^  But  if  trustees  are  ordered  by  the  court  to  call 
in  securities,  and  they  neglect  to  do  so,  they  will  be  liable  for 
any  loss  that  occurs.^  So,  if  trustees  compromise  a  debt  due 
from  a  bankrupt  estate,  they  must  show  that  the  bankrupt 
would  have  obtained  his  discharge,  and  that  it  was  impossible 
to  get  the  whole  debt,  or  they  will  be  liable  for  the  loss.^  If 
the  trustee  himself  owes  the  estate,  he  must  treat  his  indebted- 
ness as  assets  collected,  and  if  he  becomes  bankrupt,  he  must 
prove  the  debt  against  himself,  or  he  will  be  liable,  even  if  he 
gets  his  discharge.^  But  in  the  United  States  bankrupts  are 
not  discharged  from  any  liabilities  which  they  are  under  in  a 
fiduciary  capacity,  (b) 

§  441.  It  was  observed  in  Harden  v.  Parsons,®  that  no  man 
can  require,  or  with  reason  expect,  that  a  trustee  should  manage 

1  Harrison  v.  Thexton,  4  Jur.  (n.  s.)  550. 

2  Orr  V.  Newton,  2  Cox,  276. 

3  Davenport  v.  Stafford,  14  Beav.  338. 

*  Wiles  V.  Gresham,  2  Dr.  258;  5  De  G.,  M.  &  G.  770.  Lord  Justice 
Turner  expressed  a  doubt,  whether  the  trustees  should  have  been  charged, 
without  further  inquiry.  Bacot  v.  Hayward,  5  S.  C.  441.  [  See  in/ro,  §  482, 
as  to  power  to  make  advantageous  compromises.] 

*  Orrett  v.  Corser,  21  Beav.  52;  Prindle  v.  Holcombe,  45  Conn.  Ill; 
Ipswich  Manuf.  Co.  v.  Story,  5  Met.  310;  Chenery  v.  Davis,  16  Gray,  89; 
Hazelton  v.  Valentine,  113  Mass.  472;  Pettee  v.  Peppard,  120  Mass.  523. 
The  acceptance  of  the  trust  requires  him  to  treat  an  indebtedness  for  which 
he  was  previously  responsible  as  assets  collected.  Stevens  v.  Gaylord,  11 
Mass.  269;  Ips.  Manuf.  Co.  v.  Story,  5  Met.  310;  18  Pick.  236;  1  Allen,  531 ; 
10  Cush.  176;   120  Mass.  523. 

6  1  Eden,  148. 

(a)  But  see  In  re  Medland,  41  Ch.  (6)  The  exact  wording  of  the  U. 

Div.  476,  holding  that  there  is  no  S.  Bankruptcy  Law  of  1898,  §  17,  is: 

ai)8olute  rule  that  the  investment  debts  which  "were  created  by  his 

must  be  called  in,  but  that  such  a  fraud,   embezzlement,   misappropri- 

matter  must  be  dealt  with  as  a  prac-  ation,  or  defalcation  while  acting  as 

tical  one  for  the  safety  of  the  fimd.  an  officer  or  in  any  fiduciary  capac- 

See  also  In  re  Chapman,   [1896]  2  ity." 
Ch.  763;  infra,  §  466,  note. 

710 


CHAP.  XV.]  CUSTODY.  [§  441. 

another's  property  with  the  same  care  and  discretion  as  his 
own.  But  this  is  neither  sound  morality  nor  good  law.  A 
trustee  must  use  the  same  care  for  the  .safety  of  the  trust  fund, 
and  for  the  interests  of  the  cestui  que  trust,  that  he  uses  for  his 
own  property  and  interests.^  And  even  this  will  not  be  sufficient 
if  he  is  careless  in  his  own  concerns;  for  a  trustee  must  in  all 
events  use  such  care  as  a  man  of  ordinary  prudence  uses  in  his 
own  business  of  a  similar  nature.^  Thus,  where  a  trustee  had 
£200  of  his  own  money,  and  £40  of  trust-money,  in  his  house, 
and  he  was  robbed  by  his  servant,  he  was  not  held  responsible.' 
And  where  a  trustee  deposited  articles  with  his  solicitor,  to  be 
passed  over  to  a  party  entitled  to  them,  and  the  articles  were 
stolen,  the  trustee  was  not  held  responsible.^  But  if  a  trustee 
employs  an  agent,  and  the  agent  steals  or  appropriates  the 
property  intrusted  to  him,  the  trustee  will  be  held  responsible; 
that  is,  the  trustee  is  not  responsible  for  the  crimes  of  strangers, 
but  he  is  responsible  for  the  criminal  acts  of  agents  employed 
by  himself  about  the  trust  fund,^  (a)  and  for  any  loss  that  may 

'  Morley  v.  Morley,  2  Ch.  Cas.  2;  Jones  v.  Lewis,  2  Ves.  241;  Massey 
i;.  Banner,  1  J.  &  W.  247;  Att.  Gen.  v.  Dixie,  13  Ves.  534;  Ex  parte  Belchier, 
Arab.  220;  Ex  parte  Griffin,  2  G.  &  J.  114;  Taylor  v.  Benham,  5  How.  233; 
King  V.  Talbott,  50  Barb.  453;  40  N.  Y.  86;  MUler  v.  Proctor,  20  Ohio  St. 
444;  Neff's  App.,  57  Penn.  St.  91;  King  v.  King,  37  Ga.  205;  Campbell  v. 
Campbell,  38  Ga.  304;  Roosevelt  v.  Roosevelt,  6  Abb.  (N.  Y.)  N.  Cas.  447; 
Gould  V.  Chappell,  42  Md.  466;  Carpenter  v.  Carpenter,  12  R.  I.  544;  Davis 
i;.  Harmon,  21  Grat.  194. 

*  Woodruff  V.  Snedecor,  68  Ala.  442. 

»  Morley  v.  Morley,  2  Ch.  Cas.  2.  [  To  same  effect  see  Stevens  v.  Gage, 
55  N.  H.  175;  Carpenter  v.  Carpenter,  12  R.  I.  544.] 

*  Jones  V.  Lewis,  2  Ves.  240;  Foster  v.  Davis,  46  Mo.  268. 

»  Bostock  V.  Floyor,  L.  R.  1  Eq.  28;  Hopgood  v.  Parkin,  L.  R.  11  Eq.  74. 

(a)  In  view  of  later  decisions  the  that  misapplication  of  trust  funds 
proposition  in  the  text  cannot  be  by  an  agent  renders  the  trustee  li- 
considered  a  correct  statement  of  the  able  where  he  has  unnecessarily  en- 
law.  Of  the  two  cases  cited  as  trusted  the  agent  with  the  custody 
authority,  Hopgood  v.  Parkin  has  of  trust  funds.  Speight  v.  Gaunt, 
been  discredited  bj'  subsequent  Eng-  22  Ch.  Div.  727,  761 ;  Re  Partington, 
lish  decisions,  and  Bostock  v.  Floyer  57  L.  T.  654,  661. 
has  been  construed  to  hold  merely  Although  a  trustee  cannot  prop- 

711 


§441. 


CUSTODY. 


[chap.  XV. 


fall  upon  the  estate  by  the  forgery  of  a  signature  upon  which 
he  pays  money.^ 

»  Eaves  v.  Hickson,  30  Beav.  136. 


erly  delegate  his  trust  to  an  agent, 
"he  is  justified  in  employing  qual- 
ified persons  as  agents  when  in  so 
doing  he  follows  the  ordinary  course 
of  business  of  a  like  nature,"  and 
when  "according  to  the  usual  and 
regular  course  of  such  business  mon- 
eys payable  or  receivable  ought  to 
pass  through  the  hands  of  such 
agents,  the  course  may  be  properly 
followed  by  the  trustees,  though  the 
moneys  are  trust  moneys."  Roch- 
fort  V.  Seaton,  [1896]  1  Ir.  R.  18; 
Speight  V.  Gaunt,  9  App.  Cas.  1,  5; 
22  Ch.  Div.  727;  McCloskey  v.  Glea- 
son,  56  Vt.  264;  Finlay  v.  Merriman, 
39  Tex.  56.  If  the  employment  of 
agents  is  reasonably  necessary  for 
the  performance  of  the  duties  of  the 
trust,  and  the  trustee  selects  persons 
who  are  apparently  honest  and  prop- 
erly qualified  and  uses  reasonable 
supervision  over  them,  he  is  not  re- 
sponsible for  their  lack  of  intelli- 
gence or  dishonesty.  In  re  Weall, 
42  Ch.  Div.  674;  Jobson  v.  Palmer, 
[1893]  1  Ch.  71;  Lord  De  Chfford's 
Estate,  [1900]  2  Ch.  707;  Carpen- 
ter V.  Carpenter,  12  R.  I.  544. 

Thus  a  trustee  may  properly  em- 
ploy agents  to  collect  sums  due  the 
estate,  and  is  not  responsible  for 
losses  of  collections  due  to  dishon- 
esty or  insolvency  of  such  persons, 
if  he  took  proper  care  in  appointing 
them  and  exercised  reasonable  super- 
vision over  them.  In  re  Brier,  26 
Ch.  Div.  238;  Finlay  v.  Merriman, 
39  Tex.  56.  Similarly  where  trust 
funds  have  been  lost  through  em- 
bezzlement by  a  broker  employed  by 

712 


trustees  to  purchase  certain  secur- 
ities, and  the  usual  business  pre- 
cautions were  taken,  they  have  been 
held  not  to  be  responsible  for  the 
loss.  Speight  v.  Gaunt,  9  A.  C.  1. 
But  where  the  trustee  was  negligent 
in  selecting  his  broker  and  unneces- 
sarily put  the  trust  funds  into  his 
custody,  he  was  held  to  be  liable  for 
the  loss  due  to  the  broker's  dishon- 
esty. Robinson  v.  Harkin,  [1896]  2 
Ch.  415.  And  where  the  trustee  has 
not  exercised  proper  supervision 
ove  ■  his  agent  and  has  unnecessarily 
given  him  the  opportunity  to  mis- 
appropriate the  trust  funds,  he  is 
liable  for  the  loss.  McCloskey  v. 
Gleason,  56  Vt.  264. 

Where  a  loss  of  trust  funds  was 
due  to  the  failure  of  a  solicitor,  em- 
ployed by  the  trustees,  to  see  that  a 
certain  assignment  was  properly  ex- 
ecuted, it  was  held  that  the  trustees 
were  not  liable,  since  this  was  a  mat- 
ter in  which  they  must  necessarily 
rely  upon  solicitors.  Rochfort  v. 
Seaton,  [1896]  1  Ir.  R.  18.  But  a 
trustee  cannot  properly  delegate  the 
responsibility  of  choosing  proper  in- 
vestments to  a  solicitor  or  a  broker, 
even  when  the  latter  is  a  cotrustee. 
Re  Partington,  57  L.  T.  654,  661; 
Cowper  V.  Stoneham,  68  L.  T.  18; 
Hanscom  v.  Marston,  82  Me.  288. 
And  he  cannot  properly  leave  the 
trust  funds  in  the  hands  of  a  solic- 
itor or  other  agent  while  he  is  seek- 
ing a  proper  investment.  Speight  v. 
Gaunt,  9  App.  Cas.  1,  5;  Bostock  v. 
Floyer,  1  Eq.  26. 

Although  a  trustee  may  properly 


CHAP.  XV.]  CUSTODY.  [§  443. 

§  442.  Several  trustees,  residing  in  different  places,  cannot 
all  have  the  custody  of  the  same  articles;  therefore  it  is  said  that 
articles  of  plate,  which  pass  by  deliver^',  and  stocks  and  bonds, 
payable  to  the  bearer,  with  coupons  to  be  cut  off  for  the  inter- 
est, should  be  deposited  at  a  responsible  banker's.' 

§  443.  A  trustee  may  deposit  money  temporarily  in  some 
responsible  bank  or  banking-house;-  and  if  he  acted  in  good 
faith  and  with  discretion,  and  deposited  the  money  to  a  trust 
account,  he  will  not  be  liable  for  its  loss,  as  where  the  bank 
failed  in  consequence  of  war;^  but  he  will  be  liable  for  the 
money  in  case  of  a  failure  of  the  bank,  or  for  its  depreciation,  if 
he  deposits  it  to  his  own  credit,  and  not  to  the  separate  account 
of  the  trust  estate,^  even  though  he  had  no  other  funds  in  bank, 
and  told  the  officers  at  the  time  of  deposit  that  the  funds  were 
held  by  him  in  trust.^    So  if  he  allows  another  person  to  draw 

1  Mendes  v.  Guedalla,  2  John.  &  H.  259.  [  In  re  De  Pothonicr,  [1900] 
2  Ch.  529.] 

-  Rowth  V.  Howell,  3  Ves.  Jr.  565;  Jones  v.  Lewis,  2  Ves.  241;  .\dam8 
V.  Claxton,  6  Ves.  226;  Ex  parte  Belchier,  Amb.  219;  Att.  Gen.  v.  Randall, 
21  Vin.  Ab.  .534;  Massey  v.  Banner,  1  J.  &  W.  248;  Horsley  v.  Chaloner, 
2  Ves.  85;  France  v.  Woods,  Taml.  172;  Dorchester  v.  Effingham,  id.  279; 
Freme  v.  Woods,  id.  172;  Wilks  i'.  Groome,  3  Dr.  584;  Johnston  v.  Nev^'ton, 
11  Hare,  160;  Swinfen  v.  Swinfen,  29  Beav.  211.  [Law's  Estate,  144  Pa. 
St.  449;  Baer's  Appeal,  127  Pa.  St.  360.] 

'  Douglas  t'.  Stephenson's  Ex'r,  75  Va.  749.  [  Moore  v.  Eure,  101  N.  C. 
11;  Atterberry  v.  McDuffee,  31  Mo.  App.  603,  611.] 

*  Wren  v.  Kirton,  11  Ves.  377;  Fletcher  v.  Walker,  3  Madd.  73;  Mac- 
donnell  v.  Harding,  7  Sim.  178;  Mathews  v.  Brise,  6  Beav.  239;  Massey 
V.  Banner,  1  J.  &  W.  241;  see  remarks  on  this  case  in  Pennell  v.  DefFcll,  4 
De  G.,  M.  &  G.  386,  392;  School  Dis.  Greenfield  v.  First  National  Bank,  102 
Mass.  174;  Mason  v.  Whitehorn,  2  Cold.  242. 

*  William's  Adm'r  v.  Williams,  55  Wis.  300.    [  In  re  Arguello,  97  Cal.  196; 

deposit  trust   funds  in   a  bank   of  of  a  bank  whom  he  has  requested  to 

good  standing  for  a  reasonable  time  purchase  certain  bonds  and  to  place 

pending  investment  or  distribution  them  on   deposit   in   the   bank   for 

and  may  properly  deposit  in  a  bank  him,  when  he  has  not  taken  the  pre- 

the  securities  in  which  he  has  in-  caution  to  find  out  for  himself  that 

vested  trust  funds,  he  has  been  held  the  bonds  have  been  purchased  and 

to  be  liable  to  replace  the  loss  caused  placed  on  special  deposit  in  his  name, 

by  misappropriations  by  the  cashier  Key  v.  Hughes'  Ex'r,  32  W.  Va.  184. 

713 


§  444.]  CUSTODY.  [chap.  XV. 

upon  the  fund  and  misapply  the  money;  ^  so  if  he  deposits  the 
money  in  such  manner  that  it  is  not  under  his  own  exclusive 
control,  as  where  money  is  deposited  in  bank  so  that  it  cannot 
be  drawn  without  the  concurrence  of  other  persons,  the  trustee 
will  be  liable  for  the  failure  of  the  bank,  on  the  principle  that 
it  is  the  duty  of  the  trustee  to  withdraw  the  money  from  the 
bank  upon  the  slightest  indication  of  danger  or  loss,  and  he 
cannot  perform  this  duty  promptly  if  he  is  clogged  by  the  neces- 
sity of  procuring  the  concurrent  action  of  other  persons.^  (a) 
So  he  will  be  liable  if  he  keeps  money  in  bank  an  unreasonable 
length  of  time,  or  where  it  is  his  duty  to  invest  the  fund  in 
safe  securities,^  or  to  pay  it  over  to  newly  appointed  trustees,"* 
or  into  court;  ^  or  if,  having  no  occasion  to  keep  a  balance  on 
hand  for  the  purposes  of  the  trust,  he  lends  the  money  to  the 
bank  on  interest  upon  personal  security,  that  being  a  security 
not  sanctioned  by  the  court.^ 

§  444.  Trustees  may  leave  money  in  the  custody  of  third 
persons  when  it  is  necessary  in  the  course  of  business,  as  where 
money  is  left  in  the  hands  of  an  auctioneer  as  agent  of  both 
parties  on  a  sale  or  purchase;  ^   and  during  the  negotiation  of 

Booth  V.  Wilkinson,  78  Wis.  652;  O'Connor  v.  Decker,  95  Wis.  202;  Milmo's 
Succession,  47  La.  Ann.  126,  127;  McCollister  v.  Bishop,  78  Minn.  228.  1 
Ames  on  Trusts,  (2d  ed.)  481-484,  notes.] 

1  Ingle  V.  Partridge,  32  Beav.  661;  34  id.  411. 

2  Salway  v.  Salway,  alias  White  v.  Baugh,  2  R.  &  M.  215;  9  BUgh,  181; 
3  CI.  &  Fin.  44;  overruling  same  case,  4  Russ.  60. 

3  Moyle  V.  Moyle,  2  R.  &  M.  710;  Johnston  v.  Newton,  11  Hare,  169. 
[  Hetfield  v.  Debaud,  54  N.  J.  Eq.  371;  Stambaugh's  Estate,  135  Pa.  St. 
585;  Whitecar's  Estate,  147  Pa.  St.  368;  Young's  Estate,  97  Iowa,  218; 
Dick's  Estate,  183  Pa.  St.  647.] 

*  Lunham  v.  Blundell,  4  Jur.  (n.  s.)  3. 
6  Wilkinson  v.  Bewick,  4  Jur.  (n.  s.)  1010. 

«  Darke  v.  Martyn,  1  Beav.  525.  [  Baer's  Appeal,  127  Pa.  St.  360. 
Held  otherwise  in  Himt,  Appellant,  141  Mass.  515.] 

'  Edmonds  v.  Peake,  7  Beav.  239.     [  See  supra,  §  441,  note.] 

(a)  But  it  has  been  held  no  im-  his  bond  to  deposit  trust  funds  at  a 
propriety  for  a  trustee  to  enter  into  certain  bank.  McCollister  v.  Bish- 
an  agreement  with  the  sureties  on      op,  78  Minn.  228. 

714 


CHAP.  XV.]  CUSTODY.  [§  444. 

an  investment,  the  trustees  may  buy  exchequer  bills;  ^  but  if 
they  leave  the  exchequer  bills  undistinguished  in  the  hands  of  a 
banker  or  broker,  they  will  be  hable  for  the  loss  of  the  money .^ 
But  if  trustees  deposit  money  in  bank  to  their  own  credit;^  or 
if  they  leave  it  for  an  unreasonable  time,  as  a  year  after  the 
testator's  death  and  after  all  debts  and  legacies  are  paid; ''  or  if 
they  place  their  papers  and  receipts  in  the  hands  of  their  solic- 
itor, so  that  he  can  receive  their  money  and  misapply  it;  ^  or  if 
the  money  is  so  paid  into  bank  that  it  may  be  drawn  out  upon 
the  check  of  one  trustee  and  misapplied ;  ^  or  if  they  neglect  to 
sell  property  when  it  ought  to  have  been  sold,^  or  suffer  money 
to  remain  upon  personal  security,^  or  upon  an  unauthorized 
i^curity;  ^  or  if  the  money  is  left  improperly  or  unadvisedly  in 
the  hands  of  a  coexecutor  or  cotrustee,  so  that  he  has  an  oppor- 
tunity to  misapply  it,  —  all  the  trustees  will  be  responsible  for 
any  loss  that  may  occur  to  the  trust  fund.'"  (a)  So  trustees  are 
liable  for  the  attorneys  and  solicitors  whom  they  employ;  as 
where  they  employ  a  solicitor  to  examine  the  title  to  a  proposed 
mortgage,  and  they  are  misled  by  him  in  such  manner  that  a 
loss  occurs  to  the  estate,  they  are  liable  to  make  it  good."  (6) 

»  Mathews  v.  Brise,  6  Beav.  239. 

»  Ibid. 

»  Massey  v.  Banner,  1  J.  &  W.  241;  Wren  v.  Kirton,  11  Vee.  377;  Mason 
p.  Whitehom,  2  Cold.  242.     [  Supra,  §  443.] 

«  Ibid. 

»  Ghost  V.  Waller,  9  Beav.  497;  Rowland  v.  Witherden,  3  Mac.  &  G. 
568. 

•  Clough  V.  Bond,  3  Myl.  &  Cr.  490;  Clough  v.  Dixon,  8  Sim.  594.  [  Unless 
reasonable  business  necessity  justifies  such  a  course,  supra,  §  415,  note.] 

'  Phillips  V.  Phillips,  Freem.  Ch.  11. 

•  Powell  I'.  Evans,  5  Ves.  839;  Tebbs  v.  Carpenter,  1  Madd.  290. 

•  Hancom  v.  Allen,  2  Dick.  498  and  n.;  Howe  v.  Dartmouth,  7  Ves.  137. 
'"  Langford  v.  Gascojoie,  11  Ves.  333;  Shipbrook  v.  Hinchinbrook,  id. 

252;  16  Ves.  478;  Underwood  t-.  Stevens,  2  Mer.  712;  Hardy  v.  Metropolitan 
Land  Co.,  L.  R.  7  Ch.  429. 

"  Hopgood  V.  Parkin,  L.  R.  11  Eq.  74;  Bostock  v.  Floycr,  L.  R.  1  Eq.  26. 

(a)  As  to  a  trustee's  hability  for  (6)  Later  authorities  have  Umited 

the   devastavit   or   other   breach   of  the   scope   of   the   two   cases   cited 

trust  committed  by  a  cotrustee,  see  above  so  that  the  t<>xt  needs  consid- 

supra,  §  415,  note  a.  erable  qualification.    In  cases  where 


15 


§  44G.]  CUSTODY.  [chap.  XV. 

§  445.  In  one  case  it  was  said,  that  an  executor  would  not  be 
liable  if  he  had  placed  money  in  bank  under  the  control  of  a 
coexecutor.  The  money  was  entered  on  joint  account,  but  the 
individual  checks  of  the  coexecutors  could  draw  it  out.  This 
was  held  to  be  the  ordinary  and  reasonable  course  of  business.^ 
If,  however,  there  is  any  fraud,  collusion,  or  wilful  default,  or 
gross  neglect,  or  if  the  executor  has  any  reason  to  interfere,  and 
does  not  put  a  stop  to  the  mismanagement  of  his  coexecutor,  he 
will  be  held  liable.^  The  case  of  Kilbee  v.  Sneyd,  however,  is  so 
doubtful  on  this  point,  and  contrary  to  authority,  that  it  would 
be  unsafe  to  act  upon  it.^ 

§  446.  Trustees  and  executors  have  a  reasonable  time  to  wind 
up  a  testator's  estate,  and  make  investments;  and  they  may, 
without  responsibility,  keep  the  money  in  a  reliable  bank  for 
one  year  after  the  death  of  the  testator;  ^  (a)  but  if  they  draw 
the  money  out  of  bank,  and  make  any  irregular  investment,  or 
lend  it  to  another  bank  on  interest,  they  will  be  responsible  for 
the  loss  of  the  money,  even  if  the  will  directs  that  the  trustees 
shall  not  be  responsible  for  losses  by  a  banker;  the  construction 
of  such  direction  being  that  the  trustees  shall  not  be  liable  for 
loss  of  money  deposited  with  a  banker  in  the  ordinary  manner.^ 

1  Kilbee  v.  Sneyd,  2  Moll.  186. 

2  Ibid.  203,  21.3. 

'  Clough  V.  Dickson,  8  Sim.  .594;  3  Myl.  &  Cr.  490;  Gibbons  v.  Taylor, 
22  Beav.  344;  Ingle  v.  Partridge,  32  Beav.  661;  34  Beav.  411. 

*  Johnston  v.  Newton,  11  Hare,  160;  Swinfen  v.  Swinfen,  29  Beav.  211; 
Wilks  V.  Groome,  3  Dr.  584. 

5  Rehden  v.  Wesley,  29  Beav.  213. 

the  employment  of  or  reliance  upon  that  trustees  and  executors  may  re- 

attomeys  and  solicitors  is  reasonably  tain  the  trust  funds  uninvested  for  a 

necessary,  trustees  are  not  liable  to  year  and  no  more.    They  must  act 

make  good  losses  due  to  the  default  with  reasonable  diligence  in  view  of 

or  carelessness  of  the  agent,  when  he  all  the  circumstances.     See  Dick's 

has  been  trusted  or  reUed  upon  no  Estate,   183  Pa.  St.  647;  Dorris  v. 

further  than  was  reasonably  neces-  Miller,  105   Iowa,   564;   Howard  v. 

sary.    Supra,  §  441,  note;   Rochfort  Manning,  65  Ark.  122;  I?i  re  Clark's 

V.  Seaton,  [1896]  1  Ir.  R.  18.  Estate,  39  N.  Y.  S.  722;  In  re  Muller, 

(a)  There  seems  to  be  no  rule  52  N.  Y.  S.  565. 

716 


C1L\P.  XV.] 


CONVERSION. 


[§  448. 


§  447.  The  trustee  must  not  mingle  the  trust  fund  with  his 
own.  (a)  If  he  does,  the  cestui  que  trust  may  follow  the  trust 
property,  and  claim  every  part  of  the  blended  property  which 
the  trustee  cannot  identify  as  his  own.^ 

§  448.  There  may  be  express  trusts  for  conversion ;  that  is,  to 
sell  the  trust  fund,  as  it  exists  at  the  time  of  the  testator's  de- 
cease, and  convert  the  same  into  some  other  kind  of  j)r()perty 
or  investment;  (6)  and  there  may  be  an  express  trust  to  allow 

'  Lupton  V.  White,  15  Ves.  432,  440;  Chedworth  v.  Edwards,  8  Ves. 
46;  White  v.  Lincoln,  id.  363;  Fellowes  v.  Mitchell,  1  P.  Wms.  S3;  Gray  v. 
Haig,  20  Beav.  219;  Leeds  v.  Amherst,  id.  239;  Mason  v.  Morley,  34  Beav. 
471,  475;  Cook  v.  Addison,  L.  R.  7  Eq.  470;  MorriBon  v.  Kinstra,  55  Miss. 
71.    [  Fant  v.  Dunbar,  71  Miss.  576.] 


(a)  Nor  with  funds  of  a  third 
person.  Westover  v.  Carman's 
Estate,  49  Neb.  397. 

(5)  Under  the  generally  recog- 
nized doctrine  of  equitable  conver- 
sion an  imperative  direction  to  a 
trustee  or  to  a  donee  of  a  power  of 
sale,  to  change  the  form  of  the  prop- 
erty has  the  effect  of  determining  the 
nature  of  the  beneficial  interests  as  if 
the  actual  conversion  had  been  made 
as  directed  at  the  moment  their  in- 
terests were  created.  Allen  v.  Watts, 
98  Ala.  384;  Burbach  v.  Burbach,  217 
111.547;  Boland  v.  Tiernay,  118  Iowa, 
59;  Brown  Banking  Co.  v.  Stockton, 
107  Ky.  492;  Snover  v.  Squire,  24  A. 
365  (N.  J.  Ch.  1892);  Matter  of  Rus- 
sell, 168  N.  Y.  169;  Duckworth  v. 
Jordan,  138  N.  C.  520,  525;  William- 
son's Estate,  153  Pa.  St.  508;  Thorn- 
man's  Estate,  161  Pa.  St.  444; 
Howelh'.  Mellon,  189  Pa.  St.  160;  Pe- 
tition of  Holder,  21  R.  L  48;  Martin 
V.  Moore,  49  Wash.  28S;  Lynch  v. 
Spicer,  53  W.  Va.  426,  430;  Ilandley 
V.  Palmer,  91  Fed.  948.  See  also 
cases  cited  infra.    See  Lackey's  Es- 


tate, 149  Pa.  St.  7.  Thus  if  a  testa- 
tor has  directed  trustees  under  his 
will  or  his  executor  to  sell  his  real 
estate,  the  interests  of  those  entitled 
under  his  will  are  treated  as  person- 
alty and  the  trust  is  treated  as  a 
trust  of  personaltj^  from  the  begin- 
ning, although  the  actual  conver- 
sion does  not  take  place  at  once. 
Harrington  v.  Pier,  105  Wis.  485. 
Likewise  an  imperative  direction  to 
convert  personalty  into  real  estate 
makes  the  interests  of  those  en- 
titled real  estate.  McFadden  v. 
Hefley,  28  S.  C.  317;  Phillips  v.  Fer- 
guson, 85  Va.  509;  In  re  Cleveland's 
Settled  Estates,  [1893]  3  Ch.  244. 
A  discretion  given  to  the  trustee  to 
postpone  the  actual  conversion  does 
not  postpone  the  time  of  the  equi- 
table conversion,  provided  the  actual 
conversion  is  to  take  place  some  time 
at  all  events.  Bates  v.  Spooner,  75 
Conn.  501,  .'508;  Burbach  v.  Burbach, 
217  111.  547;  Lambert  r.  Morgan,  110 
Md.  1,  29;  Crane  v.  Bolles,  49  N.  J. 
Eq.  373;  Underwood  r.  Curtis,  127 
N.  Y.  523;  Russell  «;.  Hilton,  80  N. 

717 


§448. 


CONVERSION. 


[chap.  XV. 


the  cestuis  que  trust  the  use  and  enjoyment  of  the  specific  property- 
devised.    Both  of  these  forms  of  trust  must  be  strictly  executed. 


Y.  S.  563,  80  App.  Div.  178;  In  re 
Hosford,  50  N.  Y.  S.  550;  Sevems's 
Estate,  211  Pa.  St.  65;  Tasker's  Es- 
tate, 215  Pa.  St.  267;  Att.  Gen.  v. 
Dodd,  [1894]  2  Q.  B.  150. 

Where   a  trustee  is  given  mere 
authority  to  convert  in  his  discretion 
mthout  the  imperative  duty  of  do- 
ing so  there  is  no  equitable  conver- 
sion.    Ness  V.  Davidson,  49  Minn. 
469;  Condit  v.  Bigalow,  64  N.  J.  Eq. 
504,  507;  Matter  of  Tatum,  169  N. 
Y.  514;  Matter  of  CooUdge,  85  App. 
Div.  (N.  Y.)  295;   Matter  of  Bing- 
ham, 127  N.  Y.  296;  Carberry  v.  En- 
nis,  76  N.  Y.  S.  537, 72  App.  Div.  489 
Penfield   v.   Tower,    1    N.    D.   216 
Cooper's  Estate,  206  Pa.  St.  628 
Sauerbier's  Estate,  202  Pa.  St.  187 
Taylor  v.  Haskell,  178  Pa.  St.  106 
SoUiday's  Estate,  175  Pa.  St.  114 
Ingersoll's  Estate,  167  Pa.  St.  536 
Becker's  Estate,    1.50  Pa.   St.  524 
Bennett  v.  Gallaher,  115  Tenn.  568 
Bedford  v.  Bedford,  110  Tenn.  204 
Wayne  v.  Fouts,  108  Tenn.  145,  148. 
Actual  conversion  in  the  exercise  of 
such  a  discretionary  power  converts 
the    interests    of    the    beneficiaries. 
Matter  of  McKay,  77  N.  Y.  S.  845, 
75  App.  Div.  78.  But  mere  changes 
in  investments  for  convenience  of 
management  do  not  convert  the  in- 
terests of  those  entitled.     Gray  v. 
Whittemore,  192  Mass.  367;  Hens- 
zey's  Estate,  220  Pa.  St.  212.     See 
also  Hovey  v.  Dary,  154  Mass.  7. 

An  imperative  direction  to  con- 
vert upon  the  happening  of  a  con- 
tingency which  may  never  occur 
does  not  accomplish  equitable  con- 
version until  the  happening  of  the 
contingency.    Ford  v.  Ford,  70  Wis. 

718 


19.  Likewise  of  a  direction  to  con- 
vert if  and  when  requested  by  the 
cestuis.  Wheless  v.  Whelese,  92 
Tenn.  293;  Meade  v.  Campbell,  34 
S.  E.  30  (Va.  1899).  To  a  similar 
effect  see  Pyott's  Estate,  160  Pa. 
St.  441.  But  an  imperative  direc- 
tion to  convert  upon  request  of  life 
beneficiaries,  or  after  their  death  at 
a  time  left  to  the  discretion  of  the 
trustees,  accomplishes  equitable  con- 
version of  the  interests  of  the  re- 
mainder-men, since  the  conversion 
is  to  take  place  some  time  at  all 
events.  Att.  General  v.  Dodd,  [1894] 
2  Q.  B.  150. 

Where  the  actual  conversion  is 
mandatory  but  is  postponed  to  the 
happening  of  a  future  event,  as,  e.  g., 
the  death  of  the  life  tenant,  it  has 
been  held  by  some  courts  that  there 
is  no  equitable  conversion  until  the 
happening  of  the  future  event. 
Sayles  v.  Best,  140  N.  Y.  368;  Live- 
right  V.  Sternberger,  115  N.  Y.  S. 
349,  131  App.  Div.  13;  Williams  v. 
Lobban,  206  Mo.  399.  But  other 
courts  have  held  that  the  equitable 
conversion  dates  from  the  begin- 
ning. Lash  V.  Lash,  209  111.  595; 
Beaver  v.  Ross,  140  Iowa,  154;  Duck- 
worth V.  Jordan,  138  N.  C.  520. 

If  it  is  clear  from  the  whole  will 
that  the  testator  intended  that  con- 
version should  be  made  at  all  events, 
an  imperative  direction  to  convert  is 
frequently  implied.  Clarke's  Ap- 
peal, 70  Conn.  195;  Davenport  v. 
Kirkland,  156  111.  169;  Boyce  v. 
Kelso  Home,  107  Md.  190;  Harris 
V.  Ingalls,  74  N.  H.  339;  Roy  v.  Mon- 
roe, 47  N.  J.  Eq.  356;  Crane  v. 
Bolles,  49  N.  J.  Eq.  373;  Matter  of 


CHAP.   XV.] 


CONVERSION. 


[§  448. 


and  generally  no  question  arises  upon  them.     But  a  question 
sometimes  arises  from  the  situation  and  character  of  the  prop- 


Gantert,  136  N.  Y.  106;  Mcrritt  v. 
Merritt,  53  N.  Y.  S.  127,  32  App. 
Div.  442;  Keim's  Estate,  201  Pa.  St. 
609;  Severnfl's Estate, 211  Pa.  St.  Go; 
Fahnestock  v.  Fahncstock,  152  Pa. 
St.  56;  MuBtin's  Estate,  194  Pa.  St. 
437;  Marshall's  Estate,  147  Pa.  St. 
77;  McFadden  v.  Hefley,  28  S.  C. 
317;  Williams  v.  Williams,  135  Wis. 
60;  Benner  v.  Mauer,  133  Wis.  325, 
329;  Dodge  v.  Williams,  46  Wis.  70; 
Att.  Gen.  v.  Dodd,  [1894]  2  Q.  B. 
150.  See  Reid  v.  Clendenning,  193 
Pa.  St.  406.  In  Becker  v.  Chester, 
115Wis.  90,  118,  itwassaid:  "When 
the  execution  of  the  scheme  of  the 
testator  would  be  impossible,  or  at- 
tended with  such  difficulties  that  it 
would  be  unreasonable  to  suppose 
that  its  execution  waa  contemplated 
by  him  without  the  conversion  of 
real  estate  into  personal  property, 
a  direction  for  such  conversion  will 
be  deemed  imperatively  expressed  in 
the  will  by  necessary  implication,  to 
the  same  effect  as  if  expressed  in 
words;  and  the  realty  so  directed  to 
be  converted  mil  be  deemed  im- 
pressed with  the  character  of  per- 
sonal property  from  the  time  of  the 
death  of  the  testator." 

In  Matter  of  Tatum,  169  N.  Y. 
514,  it  was  said:  "In  order  that 
a  court  shall  be  justified  in  so  con- 
struing the  will  of  a  decedent  as  to 
■effect  a  change  in  the  apparent  char- 
acter of  his  estate,  and  in  regulating 
its  final  distribution,  the  equiva- 
lent of  such  a  direction  should  be 
found  in  the  general  scheme  of 
the  will,  when  the  only  power 
given  to  sell  the  real  estate  is  dis- 
cretionary.    Unless  the  purpose  of 


the  testator  will  fail  without  con- 
version, equity  will  not  presume  it. 
There  should  be  an  implication  of  a 
direction  to  convert,  so  unequivocal 
and  so  strong  aa  to  leave  no  substan- 
tial doubt  in  the  mind.  Indeed, 
conversion,  to  be  decreed,  must  be 
so  necessary,  as  that,  without  it,  the 
provisions  of  the  will  would  be  ren- 
dered unreasonable  and  incapable  of 
a  just  and  effective  operation."  Mat- 
ter of  Coolidge,  85  App.  Div.  (N.  Y.) 
295,  affirmed  177  N.  Y.  541. 

The  general  rule  has  been  stated 
as  follows  in  Pennsylvania:  "To 
work  a  conversion  of  real  estate 
into  personalty,  there  must  be 
either  (a)  a  positive  direction  to 
sell;  or  (b)  an  absolute  necessity  to 
sell  in  order  to  execute  the  will; 
or  (c)  such  a  blending  of  realty  and 
personalty,  by  the  testator,  in  his 
will,  as  to  clearly  show  that  he  in- 
tended to  create  a  fund  out  of  both 
real  and  personal  estate,  and  to  be- 
queath the  same  as  money."  Dar- 
lington V.  Darlington,  160  Pa.  St. 
65,  70;  Reid  v.  Clendenning,  193 
Pa.  St.  406;  Hunt's  Appeal,  105  Pa. 
St.  141. 

An  imperative  direction  to  con- 
vert accomplishes  equitable  conver- 
sion only  to  the  extent  required  to 
accomplish  the  manifest  purpose  for 
which  conversion  was  directed;  and, 
if  the  actual  conversion  will  not  ac- 
complish the  purpose  for  which  it 
was  directed  or  is  unnecessary,  there 
is  no  equitable  conversion,  and  the 
property  passes  to  those  entitled  in 
its  original  form.  Traak  r.  Sturgee, 
170  N.  Y.  482,  489;  Jones  v.  Kelly, 
170  N.  Y.  401;  Phillips  v.  Ferguson, 

719 


§  448.] 


CONVERSION. 


[chap.  XV. 


erty,  and  the  relations  of  the  cesiuis  que  trust  to  it,  whether  the 
trustee  is  to  convert  the  property  into  another  form,  or  allow 
the  cesiuis  que  tru^t  to  enjoy  it  in  specie:  that  is,  the  court  is 
left  to  infer  or  imply,  from  the  construction  of  the  instrument, 
the  character  of  the  property  and  the  relations  of  the  cesiuis  que 
trust,  whether  it  was  the  intention  of  the  testator  that  the  prop- 
erty should  be  converted,  or  whether  the  beneficiaries  should 
take  the  use  of  it  specifically,  according  to  the  terms  in  which 


85  Va.  509;  McHugh  v.  McCole,  97 
Wis.  166;  and  cases  cited  injra.  Thus 
a  trust  for  sale  which  is  invalid  be- 
cause of  the  rule  against  perpetui- 
ties does  not  work  an  equitable  con- 
version. Goodier  v.  Edmunds, 
[1893]  3  Ch.  455.  Where  conversion 
of  realty  was  directed  upon  the  death 
of  the  life  tenant  for  the  purpose  of 
division  between  two  daughters,  and 
both  daughters  died  before  the  life 
tenant,  it  was  held  that,  the  purposes 
for  which  conversion  had  been  or- 
dered having  ceased  to  exist,  the  prop- 
erty resumed  its  original  character. 
Painter  v.  Painter,  220  Pa.  St.  82. 
See  also  Rudy's  Estate,  185  Pa.  St. 
359;  In  re  Richerson,  [1892]  1  Ch. 
379. 

Where  the  purpose  for  which  a 
sale  of  land  was  directed  does  not 
entirely  consume  the  proceeds,  the 
surplus  will  be  treated  as  real  estate 
so  far  as  necessary  to  determine  who 
is  entitled.  Harris  v.  Achilles,  114 
N.  Y.  S.  855,  129  App.  Div.  847; 
Canfield  v.  Canfield,  62  N.  J.  Eq. 
578;  Moore  v.  Robbins,  53  N.  J.  Eq. 
137;  James  v.  Hanks,  202  111.  114; 
Fifield  V.  Van  Wyck,  94  Va.  557; 
Harrington  v.  Pier,  105  Wis.  485, 
492.  And  where  a  testator  directs 
land  to  be  sold  "the  conversion  will, 
unless  a  contrary  intention  distinctly 
appears,  be  deemed  to  have  been 
directed  merely  for  the  purposes  of 

720 


the  will,  and  consequently  if  these 
purposes  fail  or  do  not  require  it,  it 
will  in  equity  be  considered  land  and 
be  given  to  the  heir."  In  re  Ala- 
bone's  Estate,  72  A.  427,  (N.  J.  Pre- 
rog.  1909);  Moore  v.  Robbins,  53  N. 
J.  Eq.  137. 

Where  the  trustee  or  executor 
sells  land  under  a  decree  of  court  and 
not  under  any  direction  in  the  will  or 
trust  instrument,  the  proceeds  are 
treated  as  real  estate  until  they 
reach  the  hands  of  those  beneficially 
entitled.  Smith  v.  Smith,  174  111.  52, 
59;  Chapin,  Petitioner,  148  Mass. 
588.  In  case  the  beneficial  owner  is 
an  infant,  the  proceeds  retain  the 
character  of  real  estate  until  he  be- 
comes of  age.  Wetherill  v.  Hough, 
52  N.  J.  Eq.  683;  Merriam  v.  Dun- 
ham, 62  N.  J.  Eq.  567;  Major  v. 
Hunt,  64  S.  C.  97 ;  Findley  v.  Findley, 
42  W.  Va.  372,  378;  Matter  of  Mc- 
Millan, 110  N.  Y.  S.  622,  126  App. 
Div.  155.  Conversely,  where  under 
order  of  court  an  infant's  personalty 
is  used  in  the  purchase  of  land,  his 
interest  will  be  treated  as  personalty 
during  his  minority.  Matter  of  Bol- 
ton, 159  N.  Y.  129. 

As  to  the  effect  of  an  option  to 
purchase  given  by  a  decedent  see 
Smith  V.  Loewenstein,  50  Ohio  St. 
346;  Adams  v.  Peabody  Coal  Co., 
230  111.  469;  In  re  Isaacs,  [1S94]  3 
Ch.  506;  In  re  Pyle,  [1895]  1  Ch.  724. 


CHAP.  XV.]  CONVERSION.  [§  450. 

it  is  given.  AH  such  cases  must  be  determined  by  their  own 
facts  and  the  construction  of  the  instrument  under  which  the 
trust  exists.^ 

§  449.  A  court  of  equity  has  authority  to  decree  the  conver- 
sion of  a  trust  fund  from  personal  to  real  estate,  or,  vice  versa, 
where  such  conversion  is  not  contrary  to  the  will  of  the  donor 
expressly  or  impliedly,  and  is  for  the  interest  of  the  cestui.^  The 
general  rule  is,  that  where  the  testator  gives  his  persona  prop- 
erty, or  the  residue  of  his  personal  property,  or  the  interest  of 
his  personal  property,^  in  trust,  or  directly  to  several  persons  in 
succession,*  and  the  property  is  of  such  a  nature  that  it  grows 
less  valuable  by  time,  as  where  it  is  leaseholds  or  annuities,  or 
where  the  property  is  wasted  or  consumed  in  the  use  of  it,  the 
court  implies  an  intention  that  such  property  shall  be  converted 
into  a  fixed  and  permanent  form,  so  that  the  beneficiaries  may 
take  the  use  and  income  of  it  in  succession.  Accordingly,  in 
England,  such  property  is  converted  into  the  investments  al- 
lowed by  law;  and  in  the  United  States  it  must  be  converted 
into  safe  investments,  according  to  the  rules  in  force  in  the 
State  where  the  trust  is  to  be  administered;  and  if  the  trustees 
fail  to  do  so  in  a  reasonable  time,  they  will  be  guilty  of  a  breach 
of  trust.^ 

§  450.  The  court  presumes  an  intention  that  perishable  prop- 
erty shall  be  converted,  where  several  persons  are  to  enjoy  it  in 
succession;  not  so  much  from  the  actual  fact  of  such  an  inten- 

»  Hidden  v.  Hidden,  103  Mass.  59. 

*  Ex  parte  Jordan,  4  Del.  Ch.  615. 

'  Howe  V.  Dartmouth,  7  Ves.  137;  Cranch  v.  Cranch  (cited  id.  142,  147; 
Litchfield  v.  Baker,  2  Beav.  481;  Crowley  v.  Crowley,  7  Sim.  427;  Suther- 
land V.  Cook,  1  Col.  C.  C.  498;  Johnson  v.  Johnson,  2  Col.  C.  C.  441);  Feams 
V.  Young,  9  Ves.  549;  Benn  v.  Dixon,  10  Sim.  636;  Oakes  v.  Strachey,  13 
Sim.  414.  [  In  re  Game,  [1897]  1  Ch.  881;  Blake  v.  O'Reilly,  [1895]  1  Ir. 
R.  479;  Porter  v.  Baddeley,  5  Ch.  D.  542;  Rowlls  v.  Bebb,  [1900]  2  Ch.  107.] 

*  House  V.  Way,  12  Jur.  959. 

*  Bate  V.  Hooper,  5  De  G.,  M.  <t  G.  338;  see  post,  Chap.  XVII.  [  1 
Ames'  Cases  on  Trusts  (2d  ed.),  491,  note.] 

VOL.  I.  —  46  721 


§  450.]  CONVERSION.  [chap.  XV. 

tion,  as  from  its  being  a  convenient  means  of  adjusting  the 
rights  of  those  who  are  to  enjoy  the  property  in  succession.  ^  (a) 
This  presumption  is  made,  unless  a  contrary  intention  is  indi- 
cated upon  the  face  of  the  will.  The  later  authorities  give  effect 
to  slighter  indications  than  the  older  cases.^  The  object  of  the 
rule  is  to  secure  a  fair  adjustment  of  the  rights  of  all  the  cestuis 
que  trust  in  succession;  for  if  the  property  would  greatly  depre- 
ciate in  value  in  the  hands  of  the  first  taker,  the  remainder-man 
might  fail  to  receive  the  benefit  intended  to  be  given  to  him; 
the  court,  therefore,  orders  the  perishable  property  to  be  con- 
verted into  a  permanent  fund,  unless  a  contrary  intention  is 
indicated  in  the  will.  So,  if  property,  not  liable  to  waste,  but 
bearing  a  high  rate  of  interest,  and  subject  to  great  risk,  is  given 
to  one  person  for  life,  and  to  another  in  remainder,  the  bene- 
ficiary in  remainder  may  call  for  a  conversion  of  the  stocks  or 
bonds  into  a  less  hazardous  and  more  permanent  investment, 
that  their  interests  may  be  better  protected ;  ^  but  the  court  will 
not  call  in  real  securities  w^ithout  directing  an  inquiry  whether 
it  is  necessary  for  the  safety  or  benefit  of  all  parties.^  On  the 
other  hand,  the  court  applies  the  same  principles  to  the  protec- 
tion of  the  first  taker  or  tenant  for  life;  and  so,  if  there  are 
reversionary  interests  that  may  not  fall  in  and  become  beneficial 
to  the  tenant  for  life,  but  may  come  into  the  possession  of  the 

1  Cape  V.  Bent,  .5  Hare,  35;  Pickering  v.  Pickering,  4  Myl.  &  Cr.  303; 
Hinves  v.  Hinves,  2  Hare,  611;  Prendergast  v.  Prendergast,  3  H.  L.  Cas. 
19.5;  see  Cotton  v.  Cotton,  14  Jur.  950. 

^  Morgan  v.  Morgan,  14  Beav.  82;  Craig  v.  Wheeler,  29  L.  J.  Ch.  374; 
Mackie  v.  Mackie,  5  Hare,  77;  Wightwick  v.  Lord,  6  H.  L.  Cas.  217;  Blann 
V.  Bell,  5  De  G.  &  Sm.  658;  2  De  G.,  M.  &  G.  775;  Burton  v.  Mount,  2  De  G. 
&  Sm.  383;  Howe  v.  Howe,  14  Jur.  359;  2  Spence,  Eq.  Jur.  42,  554. 

'  Thornton  v.  Ellis,  15  Beav.  193;  Blann  v.  Bell,  5  De  G.  &  Sm.  658;  2 
De  G.,  M.  &  G.  775;  Wightwick  v.  Lord,  6  H.  L.  Cas.  217. 

*  Howe  V.  Dartmouth,  7  Ves.  1.50. 

(a)  Since  the  topic  of  this  and  the  the  topic  to  later  sections  which  deal 

following  section  deals  with  the  con-  more  particularly  with  the  rights  of 

fiicting  rights  of  life-beneficiary  and  life-beneficiaries  and  those  entitled 

remainder-men  rather  than  with  the  in  remainder.     Infra,  §  548  et  seq. 

actual  conversion  by  the  trustees,  it  and  notes, 
seems  best  to  confine  the  notes  upon 

722 


CHAP.  XV.]  CONVERSION.  [§  451. 

remainder-man,  the  court  may  order  the  reversions  to  be  sold, 
and  the  purchase-money  to  be  invested,  so  that  the  tenant  for 
life  may  have  the  income  for  life.'  And  if  the  trustees  have  a 
discretion  as  to  the  time  of  sale,  which  the  court  cannot  control, 
and  they  sell  when  the  reversion  falls  in,  the  court  will  give  the 
tenant  for  life  the  difference  between  the  actual  price  for  which 
the  reversion  sold,  and  its  estimated  value  one  year  after  the 
testator's  death .^  (a) 

§  451.  (b)  On  the  other  hand,  an  intention  may  be  implied 
from  the  form  or  terms  of  the  gift,  that  the  property  is  to  be 
enjoyed  by  the  cestuis  que  trust  in  specie;  as,  if  there  is  a  specific 
gift  of  leaseholds  or  of  stocks,  the  specific  legatee  will  take  the 
rents  and  dividends  of  the  specified  property.^  A  general  direc- 
tion to  pay  rents  to  the  tenant  for  life,  after  the  mention  of 
leaseholds,  is  a  specific  devise ;  ^  but  it  is  still  a  matter  of  doubt 
upon  the  authorities,  whether  such  a  direction,  unconnected 
with  any  mention  of  the  leaseholds,  is  a  specific  devise  or  not.* 

•  Ibid.iFearnsf.  Young,  9  Ves.  549;  Dimes  W.Scott,  4  Russ.  200.  [Rowlls 
V.  Bebb,  [1900]  2  Ch.  107.] 

*  Wilkinson  v.  Duncan,  23  Beav.  469. 

'  Vincent  v.  Newcombe,  Younge,  599;  Lord  v.  Godfrey,  4  Madd.  455; 
Pickering  v.  Pickering,  4  Myl.  &  Cr.  299;  Hubbard  v.  Young,  10  Beav.  205; 
Harris  v.  Poyner,  1  Dr.  181;  Mills  t;.  Mills,  7  Sim.  501;  Dunbar  v.  Woodcock, 
10  Leigh,  628;  Harrison  v.  Foster,  9  Ala.  955;  Hale  v.  Burrodale,  1  Eq.  Ca. 
Ab.  461;  Bracken  v.  Beatty,  1  Rep.  in  Ch.  110;  Evans  i'.  Iglohart,  6  G.  &  J. 
171;  Alcock  v.  Sloper,  2  Myl.  &  K.  702;  Pickering  v.  Pickering,  2  Boav.  57. 

«  Blann  v.  Bell,  2  De  G.,  M.  &  G.  775;  Crowe  v.  Crisford,  17  Beav.  .507; 
Hood  V.  Clapham,  19  Beav.  90;  Marshall  i-.  Brenner,  2  Sm.  &  Gif.  237; 
Elmore's  Trusts,  6  Jur.  (n.  s.)  1325. 

'  Goodenough  v.  Tremamondo,  2  Beav.  512;  Hunt  v.  Scott,  1  De  G.  & 

(a)  The  equitable  income  ia  now  [1900]  2  Ch.  107.     .\s  to  this  point 

reckoned  as  if  the  actual  conversion  and  as  to  other  questions  regarding 

had  taken  place  at  the  date  of  the  the  adjustment  of  the  rights  of  life 

testator's  death.     Edwards  v.  Ed-  beneficiary  and  remainder-man,  see 

wards,  183  Mass.  581;  Kinmonth  v.  infra,  §  .548  ct  seq.  and  notes. 
Brigham,  5  Allen,  270;  In  re  Hill,  50  (6)  See  infra,  §  548  ei  seq.  and 

L.  J.  Ch.  551;  In  re  Goodenough,  notes. 
11895]  2  Ch.  537;  RowUs  v.  Bebb, 

723 


§  451.]  CONVERSION.  [chap.  XV. 

A  mere  direction  to  pay  dividends  is  not  a  specific  devise  of  the 
stocks.^  But  a  bequest  of  the  "interest,  dividends,  or  income 
of  all  moneys  or  stock,  and  of  all  other  property  yielding  in- 
come at  the  testator's  death,"  has  been  held  to  be  specific,  and 
the  trustees  could  not  convert.'^  If  the  devise  is  specific,  the 
direction  to  vary  the  securities  will  not  affect  the  rights  of  a 
specific  legatee,  for  such  direction  is  only  for  the  protection  of 
the  trust  fund.^  A  debt  due  to  a  testator  is  not  devised  specifi- 
cally, although  it  is  embraced  in  the  residue  of  an  estate  spe- 
cifically devised,  as  it  is  in  no  sense  in  the  nature  of  an  invest- 
ment, and  is  therefore  to  be  converted."*  And  if  a  testator  use 
any  expression  implying  that  leaseholds  or  stocks  or  other  prop- 
erty are  not  to  be  converted,  as  if  he  names  a  time  for  the  sale  of 
them,  as  at  or  after  the  death  of  the  tenant  for  life,  the  trustees 
will  have  no  power  to  convert  the  property  until  the  time  ar- 
rives.^ But  where  a  testator  gave  to  his  wife  the  whole  of  the 
interest  arising  from  his  property,  both  real  and  personal,  during 
her  life,  and  at  her  decease  to  be  disposed  of  as  therein  directed, 

Sm.  219;  Wearing  v.  Wearing,  23  Beav.  99;  Pickup  v.  Atkinson,  4  Hare,  624; 
Craig  V.  Wheeler,  29  L.  J.  Ch.  374;  VacheU  v.  Roberts,  32  Beav.  140;  Har- 
vey V.  Harvey,  5  Beav.  134;  Att.  Gen.  v.  Potter,  id.  164. 

1  Neville  v.  Fortescue,  16  Sim.  333;  Blann  v.  Bell,  2  De  G.,  M.  &  G. 
775;  Sutheriand  v.  Cook,  1  Col.  C.  C.  503;  Hood  y.  Clapham,  19  Beav. 
90. 

2  Boys  V.  Boys,  28  Beav.  4.36. 

3  Lord  V.  Godfrey,  4  Madd.  455;  Llewellyn's  Trusts,  29  Beav.  171; 
Morgan  v.  Morgan,  14  Beav.  72. 

*  Holgate  V.  Jennings,  24  Beav.  630.  There  is  some  doubt  upon  the 
principles  of  this  case. 

6  Collins  V.  CoUins,  2  Myl.  &  K.  703;  Vaughan  v.  Buck,  1  Phill.  78; 
Lichfield  v.  Baker,  13  Beav.  451;  Harris  v.  Poyner,  1  Dr.  180;  Chambers  v. 
Chambers,  15  Sim.  190;  Daniel  v.  Warren,  2  Y.  &  Col.  Ch.  290;  Rowe  v. 
Rowe,  29  Beav.  276;  Alcock  v.  Sloper,  2  Myl.  &  K.  699;  Hind  v.  Selby,  22 
Beav.  373;  Bowden  v.  Bowden,  17  Sim.  65;  Burton  v.  Mount,  2  De  G.  & 
Sm.  383;  Skirving  v.  Williams,  24  Beav.  275;  Hinves  v.  Hinves,  3  Hare,  609; 
Harvey  v.  Harvey,  5  Beav.  134;  Bethune  v.  Kennedy,  1  Myl.  &  Cr.  114; 
Hunt  V.  Scott,  1  De  G.  &  Sm.  219;  Pickering  v.  Pickering,  2  Beav.  31;  4 
Myl.  &  Cr.  289;  Prendergast  v.  Prendergast,  3  H.  L.  Cas.  195;  Hood  v. 
Clapham,  19  Beav.  90;  Neville  v.  Fortescue,  16  Sim.  333;  Howe  v.  Howe, 
11  Jur.  359. 

724 


CHAP.  XV.]  INVESTMENT.  [§  4.52. 

it  was  held  that  the  trustees  must  convert,  as  there  was  no  indi- 
cation that  she  should  enjoy  any  of  the  property  in  specie} 

§  452.  After  a  trustee  has  reduced  the  trust  fund  to  posses- 
sion, and  has  secured  the  proper  custody,  and  after  he  has  con- 
verted so  much  of  the  property  as  was  necessary  to  sell  for 
money,  his  next  duty  is  to  invest  the  proceeds.  It  is  one  of  the 
most  important  of  the  duties  of  trustees  to  invest  the  trust  fund 
in  such  manner  that  it  shall  be  safe,  and  yield  a  reasonable  rate 
of  income  to  the  cestui  que  trust.  If  there  are  directions  in  the  in- 
strument of  trust  as  to  the  time,  manner,  and  kind  of  investment, 
the  trustees  must  follow  the  direction  and  power  so  given  them. 
The  creator  of  a  trust  may  specify  the  kind  of  investment  and 
what  security  may  be  taken,  or  he  may  dispense  with  all  secur- 
ity.^ In  the  absence  of  such  directions  and  powers,  the  trustees 
must  be  governed  by  the  general  rules  of  the  court,  or  by  the 
statutes  and  laws  of  the  State  in  which  the  trust  is  to  be  exe- 
cuted. If  there  are  no  directions  in  the  instrument,  nor  rules  of 
court,  nor  statutory  provisions  in  relation  to  investments,  they 
must  be  governed  by  a  sound  discretion  and  good  faith}  They 
must  not  have  speculation  in  view,  but  rather  a  permanent 
investment,  considering  both  the  probable  income  and  the  prob- 
able safety  of  the  capital.*  A  trustee  should  clearly  indicate  the 
investments  he  makes  on  behalf  of  the  trust.  If  he  invests 
apparently  in  his  private  capacity  and  after  loss  claims  it  was  a 
trust  transaction,  he  opens  himself  to  suspicion  of  maladmin- 

'  Benn  v.  Dixon,  1  Phill.  76;  Thornton  v.  Ellis,  15  Beav.  193;  Morgan  v. 
Morgan,  14  Beav.  92;  Blann  v.  Bell,  2  De  G.,  M.  &  G.  775;  Hood  v.  Clap- 
ham,  19  Beav.  90;  Lichfield  v.  Baker,  13  Beav.  481. 

2  Denike  v.  Harris,  84  N.  Y.  89. 

'  As  a  general  rule  investments  by  executors  and  testamentary'  tnistees, 
which  take  the  funds  beyond  the  jurisdiction  of  the  court,  will  not  be  sus- 
tained, and  the  trustee  makes  such  investments  at  the  peril  of  being  held 
responsible  for  the  safety  of  investment.  This  rule  is  not  inflexible,  but  the 
circumstances  must  be  very  unusual  to  justify  the  exception  to  it.  Cruiston 
V.  Olcott,  84  N.  Y.  339. 

*  Emery  v.  Batchelder,  78  Me.  233.  [  Mattocks  v.  Moulton,  84  Me. 
545;  Hart's  Estate,  203  Pa.  St.  480;  Matter  of  Hall,  164  N.  Y.  196.] 

725 


§  452.]  INVESTMENT.  [ciIAP.  XV. 

istratlon.^  A  trustee  ought  not  as  a  rule  to  invest  in  second 
mortgages.^  Trustees  ought  to  invest  in  government  or  State 
securities,  or  in  bonds  and  mortgages  on  unincumbered  real 
estate.  The  rule  is  not  inflexible,  but  subject  to  the  higher  rule 
that  the  trustees  are  always  to  employ  such  care  and  diligence 
in  the  trust  business  as  careful  men  of  discretion  and  intelligence 
employ  in  their  own  affairs.^  In  Rhode  Island,  neither  statute 
nor  rule  of  court  fixes  any  special  class  of  investments  for  trust 
funds,  and  trustees  are  therefore  only  required  to  be  prudent, 
having  regard  to  the  income  and  the  permanence  and  safet}'  of 
the  investment.^  Any  loss  occasioned  by  his  negligence  he  must 
bear.^  It  is  the  duty  of  trustees  having  funds  for  investment  to 
keep  them  invested,  and  if  they  retain  trust-moneys  uninvested 
beyond  a  reasonable  time,  six  months  being  usually  allowed, 
they  are  'prima  facie  liable  for  interest.  Voluntary  investments 
must  not  be  made  by  a  trustee  beyond  the  jurisdiction  of  the 
court  having  charge  of  the  trust,  except  in  case  of  necessity  for 
the  saving  of  the  fund.  If  he  does  so,  the  investment  is  at  his 
peril  of  loss.'  (a)  Where  a  trustee  invested  in  a  confederate 
bond  which  perished  on  his  hands,  he  was  held  not  liable,  having 
acted  in  good  faith  and  with  due  discretion  according  to  the 

1  State  ?;.  Roeper,  82  Mo.  57.  [White  ;;.  Sherman,  168  111.  589;  Re 
Hodges'  Estate,  66  Vt.  70;  Estate  of  Cousins,  111  Cal.  441,  447;  Coffin  v. 
Bramlett,  42  Miss.  194.] 

2  Com'rs  of  Somerville  v.  Johnson,  36]  N.  J.  Eq.  211;  Tuttle  v.  Gil- 
more,  id.  617. 

^  Mills  V.  Hoffman,  26  Hun,  594. 
*  Peckham  v.  Newton,  15  R.  I.  321. 

5  CogbiU  V.  Boyd,  77  Va.  450. 

6  Lent  V.  Howard,  89  N.  Y.  169.  [Young's  Estate,  97  Iowa,  218;  Het- 
field  V.  Debaud,  54  N.  J.  Eq.  371;  Stambaugh's  Estate,  135  Pa.  St.  585; 
Wliitecar's  Estate,  147  Pa.  St.  368.  But  see  In  re  Wiley,  91  N.  Y.  S.  661, 
98  App.  Div.  93.] 

^  Ormiston  v.  Olcott,  84  N.  Y.  339.  [  McCullough  v.  McCullough,  44  N. 
J.  Eq.  313;  Pabst  v.  Goodrich,  133  Wis.  43.] 

(a)  In   Massachusetts  the  court  them.    Thayer  v.  Dewey,  185  Mass. 

has  expressed  disapproval  of  such  68.    See  also  Gouldey's  Estate,  201 

investments,  but  has  dechned  to  lay  Pa.  St.  491. 
down    any    arbitrary    rule    against 

726 


CHAP,  XV.]  INVESTMENfT.  [§  453. 

lights  of  the  time  of  investing.'  The  test  of  liabiHty  is  whether 
or  no  the  trustees  have  acted  as  prudent  men  would  have  acted 
in  the  management  of  their  own  property.^ 

§  453.  There  is  one  rule  that  is  universally  applicable  to  in- 
vestments by  trustees,  and  that  rule  is,  that  trustees  cannot 
invest  trust-moneys  in  personal  securities.  If  trustees  have  a 
discretion  as  to  the  kind  of  investments,  it  is  not  a  sound  discre- 
tion to  invest  in  personal  securities.^  Lord  Hardwicke  said,  that 
"a  promissory  note  is  evidence  of  a  debt,  but  no  security  for 
it."'*  Baron  Hothman  observed,  that  "lending  on  personal 
credit  for  the  purpose  of  a  larger  interest  was  a  species  of  gam- 


»  Waller  v.  Catlett,  83  Va.  200.  [  Finch  v.  Finch,  28  S.  C.  164;  Franklin 
V.  McElroy,  99  Ga.  123;  Baldy  v.  Hunter,  98  Ga.  170;  171  U.  S.  388;  com- 
pare Lamar  v.  Micou,  112  U.  S.  452.] 

«  Godfrey  v.  Faulkner,  23  Ch.  D.  483.  [  Rae  v.  Meek,  14  App.  Cas.  558; 
Re  Somerset,  [1894]  1  Ch.  231;  Dickinson,  Appellant,  152  Mass.  184; 
Gilbert  v.  Kolb,  85  Md.  627;  Mattocks  v.  Moulton,  84  Me.  545;  Matter  of 
Hall,  164  N.  Y.  196;  Hart's  Estate,  203  Pa.  St.  480;  In  re  Allis's  Estate,  123 
Wis.  223;  Pabst  v.  Goodrich,  133  Wis.  43.] 

*  Walker  v.  Symonds,  3  Swanst.  62;  Darke  v.  Martin,  1  Beav.  525; 
Terry  v.  Terry,  Pr.  Ch.  273;  Adye  v.  Feuilleteau,  1  Cox,  24;  Vig;rass  v.  Bin- 
field,  3  Madd.  62;  Harden  i-.  Parsons,  1  Eden,  149,  note  (a);  Anon.  Lofft, 
492;  Keble  v.  Thompson,  3  Bro.  Ch.  112;  Wilkes  v.  Steward,  G.  Coop.  6; 
Clough  V.  Bond,  3  Myl.  &  Cr.  496;  Pocock  t-.  Reddington,  5  Vcs.  799;  ColUs 
V.  CoUis,  2  Sim.  365;  Blackwood  v.  Borrowes,  2  Conn.  &  Laws.  477;  Watts  v. 
Girdleston,  6  Beav.  188;  Graves  v.  Strahan,  8  De  G.,  M.  &  G.  291; 
Fowler  v.  Reynal,  3  Mac.  &  G.  500;  Smith  v.  Smith,  4  Johns.  Ch.  281; 
Nyce's  Est.,  5  Watts  &  S.  245;  Soyer's  App.,  5  Penn.  St.  377;  Willes's 
App.,  22  id.  330;  Gray  v.  Fox,  Saxton,  Ch.  259;  Harding  v.  Lamed,  4  Allen, 
426;  Clark  v.  Garfield,  8  Allen,  427;  Moore  t'.  Hamilton,  4  Fla.  112;  Spear 
V.  Spear,  9  Rich.  Eq.  184;  Barney  v.  Saunders,  16  How.  545,  546.  But  see 
Knowlton  v.  Brady,  17  N.  H.  458.  Taking  notes  for  a  loan  without  security 
is  negligence,  and  renders  the  trustee  responsible  if  the  debtor  becomes 
insolvent.  Judge  of  Probate  v.  Mathes,  60  N.  H.  433.  [  Dufford  v.  Smith, 
46  N.  J.  Eq.  216;  In  re  Blauvelt's  Estate,  20  N.  Y.  S.  119;  Nobles  r.  Hogg, 
36  S.  C.  322;  Baer's  Appeal,  127  Pa.  St.  360;  Matter  of  Myers,  131  N.  Y. 
409;  Simmons  v.  Oliver,  74  Wis.  633;  In  re  Roach's  Estate,  50  Or.  179. 
But  see  Hunt,  .\ppellant,  141  Mass.  515,  holding  that  a  loan  to  a  bank  in 
good  standing  was  prudent.] 

*  Walker  v.  Symonds,  3  Swanst.  81,  note  (a),  citing  Ryder  v.  Bickerton. 

727 


§  453.]  INVESTMENT.  [CHAP.  XV. 

ing."  ^  Lord  Kenyon  said,  that  "no  rule  was  better  established 
than  that  a  trustee  could  not  lend  on  mere  personal  security, 
and  it  ought  to  he  rung  in  the  ears  of  every  one  who  acted  in  the 
character  of  trustee."  ^  It  makes  no  difference  that  there  are 
several  joint  promisors;  ^  nor  that  the  loan  is  to  a  person  to 
whom  the  testator  loaned  money  on  his  personal  promise;  ^  nor 
will  personal  sureties  justify  the  loan.^  There  must  be  express 
authority  in  the  instrument  of  trust  to  authorize  a  loan  on 
personal  promises.®  Loose,  general  expressions,  leaving  the  na- 
ture of  the  investments  to  the  trustees,  will  not  justify  such 
loans.  ^  All  the  terms  and  conditions  of  a  loan,  to  be  made  on 
personal  security,  must  be  strictly  complied  with;  as,  if  a  loan 
is  authorized  to  a  husband,  upon  the  written  consent  of  the 
wife,  such  consent  must  be  had  in  the  required  form ;  ^  and  a 
subsequent  assent  will  not  save  the  trustees  from  responsibility.^ 
An  authority  to  loan  on  personal  security  will  not  justify  the 
trustees  in  lending  to  one  of  themselves  ;^'^  nor  will  it  justify  them 


*  Adye  v.  Feuilleteau,  1  Cox,  25. 

2  Holmes  v.  Dring,  2  Cox,  1;  Wynne  v.  Warren,  2  Heisk.  118;  Dunn  v. 
Dunn,  1  S.  C.  350.  A  trustee,  investing  in  personal  securities,  continues 
responsible  for  them  after  a  transfer  to  his  successor,  until  they  are  paid  or 
legally  invested.  For  those  that  are  paid  he  is  relieved  from  responsibility, 
although  the  money  may  never  be  received  by  the  trust  estate.  In  re  Fos- 
ter's Will,  15  Hun  (N.  Y.),  387. 

»  Ibid.;  Clark  v.  Garfield,  8  Allen,  427. 

<  Styles  V.  Guy,  1  Mac.  &  G.  423.  [  DuflFord  v.  Smith,  46  N.  J.  Eq. 
216.] 

5  Watts  V.  Girdleston,  6  Beav.  188.  [  Simmons  v.  OUver,  74  Wis. 
633.] 

«  Forbes  v.  Ross,  2  Bro.  Ch.  430;  2  Cox,  113;  Child  v.  Child,  20  Beav. 
50. 

^  Pocock  V.  Reddington,  5  Ves.  799;  Wilkes  v.  Stewart,  G.  Coop.  6;  Mills 
V.  Osborne,  7  Sim.  30;  Wynne  v.  Warren,  2  Heisk.  118.  [  See  infra,  §  460, 
note.] 

'  Cocker  v.  Quayle,  1  R.  &  M.  535;  Pickard  v.  Anderson,  L.  R.  13  Eq. 
608;  Forbes  v.  Ross,  2  Bro.  Ch.  430. 

»  Bateman  v.  Da\Tis,  3  Madd.  98. 

»»  Forbes  v.  Ross,  2  Bro.  Ch.  430;  2  Cox,  113; v.  Walker,  5  Russ.  7; 

Stickney  v.  Sewell,  1  Myl.  &  Cr.  814;  Francis  v.  Francis,  5  De  G.,  M.  & 
G.  108;  De  Jamette  v.  De  Jamette,  41  Ala.  708. 

728 


CHAP.   XV.] 


INVESTMENT. 


[§  454. 


in  lending  to  a  relation,  for  the  purpose  of  accommodating 
him.^  (a) 


§  454.  So,  in  the  absence  of  express  authority,  the  employ- 
ment of  trust  funds  in  trade  or  speculation,  or  in  a  manufacturing 
establishment,  will  be  a  gross  breach  of  trust.^  (6)  However  ad- 
vantageous such  an  investment  may  appear,  the  trustee  invest- 
ing the  funds  in  such  undertakings  will  be  compelled  to  make 
good  all  losses,  and  to  account  for  and  pay  over  all  profits.^  (c) 

»  Ibid.;  Langston  v.  Ollivant,  G.  Coop.  33;  Cock  v.  Goodfellow,  10  Mod. 
489;  Fitzgerald  v.  Pringle,  2  Moll.  534. 

2  Munch  I'.  Cockerell,  5  Myl.  &  Cr.  178;  Kyle  v.  Bamett,  17  Ala.  306; 
Flagg  V.  Ely,  1  Edm.  (N.  Y.)  206;  King  v.  Talbott,  40  N.  Y.  96;  .50  Barb. 
453;  Tucker  v.  State,  72  Ind.  242.  [  Warren  v.  Union  Bank,  157  N.  Y.  259, 
268.]  And  parol  request  by  testator  to  trustee  to  carry  on  the  business  for 
the  benefit  of  his  family  is  inadmissible  to  prove  authority.  Raynes  v. 
Raynes,  51  N.  H.  201. 

s  French  v.  Hobson,  9  Ves.  103;  Brown  v.  De  Tastet,  Jac.  284;  Cook  v. 
CoUingridge,  id.  607;  Crawshay  v.  Collins,  15  Ves.  218;  2  Russ.  325;  Feath- 
erstonhaugh  t'.  Fenwick,  17  Ves.  298;  Docker  v.  Somes,  2  Myl.  &  K.  655; 
Weddcrbum  v.  Wedderbum,  2  Keen,  722;  4  Myl.  &  Cr.  41;  Martin  v.  Ray- 
born,  42  Ala.  648. 


(a)  Authority  to  lend  to  a  certain 
named  partnership  does  not  author- 
ize a  loan  to  a  partnership  of  the 
same  name  and  conducting  the  same 
business  after  the  death  or  retire- 
ment of  one  or  more  members.  In 
re  Tucker,  [1894]  1  Ch.  724;  Smith  v. 
Patrick,  [1901]  App.  Caa.  282. 

Trustees  having  a  power  with  the 
consent  of  the  tenant  for  life,  to  lend 
on  personal  securities,  may  lend  on 
such  secvu-ities  to  the  tenant  for  life 
himself  if  they  are  satisfied  that  the 
loan  will  be  repaid.  In  re  Laing's 
Settlement,  [1899]  1  Ch.  593,  con- 
troverting Lewin  on  Trusts,  (10th 
ed.)  335.     See  11th  ed.,  343. 

(b)  Thus  a  trustee  properly  hold- 
ing an  investment  in  shares  of  a  na- 
tional bank  has  no  right  to  continue 


the  investment  in  the  business  after 
the  bank  has  surrendered  its  charter 
and  the  stockholders  have  voted  to 
continue  the  business  as  a  partner- 
ship. Penn  v.  Fogler,  182  111.  76.  As 
to  investment  in  shares  of  a  business 
corporation,  see  infra,  §§  455,  456. 

(c)  He  must  make  good  not  only 
all  losses  to  the  corpus  of  the  trust 
fund.  Re  Massingberd's  Settlement, 
60  L.  T.  620;  Re  Walker,  62  L.  T. 
449;  Head  v.  Gould,  [1898]  2  Ch.  250; 
but  all  losses  of  income,  as  well. 
Matter  of  Myers,  131  N.  Y.  409;  In 
re  Harmon's  Estate,  61  N.  Y.  S.  50, 
45  App.  Div.  196. 

Ordinarily  the  gain  on  one  un- 
authorized investment  cannot  be 
used  to  offset  the  loss  on  another, 
but  if  all  the  investments  can  be  con- 

729 


§  454.]  INVESTMENT.  [CHAP.  XV. 

The  law  discourages  all  such  use  of  trust  funds,  by  rendering 
it  certain  that  the  trustee  shall  make  no  profit  from  such  invest- 
ments, and  that  he  shall  be  responsible  for  all  losses.  And  if  a 
trustee  stands  by,  and  sees  his  cotrustee  employ  the  funds  in  that 
manner,  he  will  be  equally  liable.^  The  same  rule  applies  if  the 
trustees  simply  continue  the  trade  or  business  of  the  testator.^ 
It  is  their  duty  to  close  up  the  trade,  withdraw  the  fund,  and 
invest  it  in  proper  securities  at  the  earliest  convenient  moment; 
and  the  same  rule  applies  although  the  trustees  may  have  been 
the  business  agents  or  partners  of  the  testator.^  Nor  will  a 
power  "to  place  out  at  interest,  or  other  way  of  improvement," 
authorize  the  employment  of  the  money  in  a  trading  concern.* 
In  one  case  the  direction  was  to  "employ"  the  money,  and  it 
was  thought  that  it  savored  of  trade,  and  might  be  employed  in 
that  manner;  ^  but  it  would  not  be  safe  for  trustees  to  rely  upon 
that  case  as  an  authority,  even  if  their  trust  instrument  contains 
a  similar  direction.  If  the  settlor  authorize  his  trustees  to  con- 
tinue the  fund  in  a  trading  firm,  it  will  be  a  breach  of  trust,  if 
the  trustees  allow  the  fund  to  remain  after  a  change  in  the  firm, 
as  by  the  death  or  withdrawal  of  one  of  the  partners.®    If  the 

'  Booth  V.  Booth,  1  Beav.  125;  Ex  parte  Heaton,  Buck.  386;  Bates  v. 
UnderhiU,  3  Redf.  (N.  Y.)  365.    [  Supra,  §  415  and  notes.] 

*  Ibid.;  Kirkman  v.  Booth,  11  Beav.  273.  In  some  cases,  an  executor  is 
bound  to  complete  the  contracts  of  the  testator.  Collinson  v.  Lister,  20 
Beav.  356. 

*  Wedderburn  v.  Wedderburn,  2  Keen,  722;  4  Myl.  &  Cr.  41.  [  In  re 
Smith,  [1896]  1  Ch.  171;  Eufaula  Nat.  Bank  t;.  Manasses,  124  Ala.  379.] 

*  Cock  V.  Goodfellow,  10  Mod.  489. 

*  Dickinson  v.  Player,  C.  P.  Coop.  178  (1837,  1838). 

*  Cummins  v.  Cummins,  3  Jo.  &  Lat.  64;  8  Ir.  Eq.  723.    [  Smith  v.  Pat- 

eidered  as  parts  of  one  transaction,  shut  himself  out  from  objecting  to 

the  cestui  will  not  be  allowed  to  af-  the  misuse  of  trust  funds,  as  where 

firm  those  which  are  profitable  and  he  himself  has  used  them  up  through 

to  disaffirm  those   which  have  re-  the  negligence  of  the  trustee,   the 

suited  in  a  loss.    English  v.  Mcln-  latter,  although  liable  to  replace  the 

tyre,  51  N.  Y.  S.  697;  In  re  Porter's  principal,  is  entitled  to  the  income, 

Estate,  25  N.  Y.  S.  822.     See  In  re  even  after  the  bankruptcy  of  the  life 

Smith,  44  W.  R.  270.  beneficiary.       Fletcher     v.     Collis, 

Where   the   life   beneficiary   has  [1905]  2  Ch.  24. 

730 


CHAP.  XV.]  BANK    SHARES    AIVD    CORPORATIONS.  [§  455. 

trustees  are  directed  to  continue  the  testator's  trade,  they  can 
invest  none  of  his  general  assets  in  the  business.  They  are 
confined  to  the  fund  already  embarked  in  the  trade.'  If  the 
trustees  act  in  good  faith  in  continuing  the  testator's  business 
under  such  directions  in  a  will,  they  will  not  be  liable  for  any 
loss;  ^  but  they  must  act  in  good  faith  and  without  collusion  or 
interested  motives.  So  trustees  are  not  bound  to  continue  the 
capital  in  such  trade,  and  they  ought  not  to  do  so  against  their 
judgment.^  But  if  all  the  cestuis  que  trust  are  sui  juris,  and 
capable  of  acting  for  themselves,  and  they  desire  an  executor, 
administrator,  or  trustee  to  continue  the  business  of  the  testa- 
tor a  few  months,  in  order  to  preserve  it  for  his  son,  and  the 
executor  acts  in  accordance  with  their  request,  and  uses  his  best 
skill  and  judgment  in  the  conduct  of  the  trade,  he  will  be  al- 
lowed for  the  loss  in  his  accounts.^  (a) 

§  455.  In  England,  trustees  cannot  invest  the  trust  fund  in 
the  stock  or  shares  of  any  bank  or  private  or  trading  corpora- 
rick,  [1901]  A.  C.  282;  In  re  Tucker,  [1894]  1  Ch.  724;  Re  Webb,  63  L.  T. 
545.] 

>  McNeille  v.  Acton,  4  De  G.,  M.  &  G.  563;  17  Jur.  104.  And  the  court 
will  keep  separate  the  trade  property,  and  apply  it  exclusively  to  the  pur- 
poses of  the  trade.  Owen  v.  Delamere,  15  Eq.  Gas.  139;  Ex  parte  Richard- 
eon,  3  Madd.  138;  Ex  parte  Garland,  10  Ves.  120.  [Gallagher  v.  Ferris,  7 
L.  R.  Ir.  489;  In  re  Johnson,  15  Ch.  Div.  548.] 

«  Paddon  v.  Richardson,  7  De  G.,  M.  &  G.  563.  [  In  re  Crowther,  [1895] 
2  Ch.  56.] 

»  Murray  v.  Glasae,  23  L.  J.  Ch.  124. 

*  Poole  V.  Munday,  103  Mass.  174. 

(a)  A  power  expressly  given  to  ers    r.   Houston   Guano,   etc.,   Co., 

trustees  to  postpone  the  sale  of  the  107  Ga.  49. 

testator's  business  as  long  as  they  As  to  the  remedies  of  trade  credi- 

should   deem   it   expedient,   carries  tors  against  the  trustees  and  against 

with  it  by  implication,  authority  to  the     trust     property     where     the 

carry  on  the  business  on  behalf  of  trustee  continues  the  business,   see 

the  trust.     In  re  Croui^her,   [1895]  infra,  §  815  6  and  note. 
2  Ch.  56.    In  the  cited  case  the  trus-  As  to  power  of  assignees  for  the 

tees    carried    on    the    business    for  benefit  of  creditors  to  continue  the 

twenty-two  years.     See  also  Sand-  assignor's  business,  see  infra,  §  598, 

note. 

731 


§  455.]  INVESTMENT.  [CHAP.  XV. 

tion;  for  the  capital  depends  upon  the  management  of  the 
directors,  and  is  subject  to  losses.^  (a)  It  is  apparent,  that  a 
manufacturing  or  trading  corporation  may  lose  its  whole  capital 
in  the  prosecution  of  its  business  strictly  within  the  terms  of  its 
charter,^  Lord  Eldon  said  of  bank  stock,  that  "it  is  as  safe,  I 
trust  and  believe,  as  any  government  security;  but  it  is  not 
government  security,  and  therefore  this  court  does  not  lay  out 
or  leave  property  in  bank  stock,  and  what  this  court  will  decree 
it  expects  from  trustees  and  executors."  ^  By  Lord  St.  Leon- 
ards' Act,  22  &  23  Vict.  35,  trustees,  not  forbidden  by  the  instru- 
ment of  trust,  are  authorized  to  invest  in  Bank  of  England  or 
Ireland  or  East  India  stock.  This  act  was  held  not  to  authorize 
an  investment  in  these  stocks  of  trust  funds  settled  before  the 
passage  of  the  act."*  By  23  &  24  Vict.  c.  38,  the  original  act  was 
made  retrospective,  and  the  courts  of  chancery  were  authorized 
to  issue  general  orders,  from  time  to  time,  as  to  the  investment 
of  funds  subject  to  its  jurisdiction,  either  in  three  per  cent  con- 
solidated or  reduced,  or  new  bank  annuities,  or  in  such  other 
stocks,  funds,  or  securities  as  the  court  shall  think  fit;  and 
trustees,  having  power  to  invest  trust  funds  in  government 
securities,  or  upon  railway  stocks,  funds,  or  securities,  may 
invest  in  the  stocks,  funds,  or  securities  which  may  be  desig- 
nated by  the  general  order  of  the  court.  In  pursuance  of  the 
statute,  a  general  order  was  issued  in  1861,  as  follows:    "Cash 

1  Haynes  v.  Reddington,  1  Jo.  &  Lat.  589;  7  Ir.  Eq.  405;  Clough  v.  Bond, 
3  Myl.  &  Cr.  496;  PoweU  v.  Cleaver,  7  Ves.  142,  n. 

2  Trafford  v.  Boehm,  3  Atk.  440;  Mills  v.  Mills,  7  Sim.  501;  Hancom  v. 
Allen,  2  Dick.  499,  n.;  7  Bro.  P.  C.  375;  Emelie  v.  Emelie,  id.  259;  Peat  v. 
Crane,  2  Dick.  499,  n.;  Clough  v.  Bond,  3  Myl.  &  Cr.  496. 

3  Howe  V.  Dartmouth,  7  Ves.  150;  Band  v.  Fardell,  7  De  G.,  M.  &  G. 
833;  King  v.  Talbott,  40  N.  Y.  86. 

*  Re  Miles's  Will,  5  Jur.  (n.  s.)  1266;  Dodson  v.  Sammell,  6  Jur.  (n.  s.) 
137;  1  Dr.  &  Sm.  575.  The  Vice-Chancellor  held  the  other  way  in  Page 
t;.  Bennett,  2  Gif.  117;  Simson's  Trusts,  1  John.  &  H.  89;  Mortimer  v.  Pic- 
ton,  4  De  G.,  J.  &  S.  166,  179.     [  See  56  and  57  Vict.  c.  53.] 

(a)  A  trustee's   field    of   invest-     56  and  57  Vict.  c.  53,  as  interpreted 
ment  in  England  has  been  extended     by  In  re  Smith,  [1896]  2  Ch.  590. 
by  statute.    See  Trustee  Act  of  1893, 

732 


CHAP.  XV.  J  BANK    SHARES    AND    CORPORATIONS.  [§  456. 

under  the  control  of  the  court  may  be  invested  in  bank  stock, 
East  India  stock,  exchecjuer  bills,  and  £2  10*.  annuities,  and 
upon  freehold  and  copyhold  estates,  respectively  in.  England  and 
Wales,  as  well  as  in  consolidated  £8  per  cent  annuities,  reduced 
£3  per  cent  annuities,  and  new  £.'i  per  cent  annuities."  There 
are  also  provisions  in  the  act  by  which  trustees  may  apply  to 
the  court  for  leave  to  change  their  investments  into  those  now 
allowed  by  the  act  and  the  court;  but  the  act  does  not  apply 
where  the  fund  is  settled  specifically  and  there  is  no  power  of 
varying  the  securities.^  Courts  may  give  directions  as  to  invest- 
ments by  trustees  by  decrees  in  particular  suits,  or  by  the  pro- 
mulgation of  general  orders  or  rules  of  court.'  (a)  It  is  said  that 
the  public  policy  in  England  of  compelling  trustees  to  invest 
trust  funds  in  government  funds  originated  largely  in  the  neces- 
sities of  the  government,  and  the  public  advantage  of  creating 
a  market  and  demand  for  government  securities.^ 

§  456.  The  English  rule,  in  relation  to  investments  of  trust 
funds  in  bank  stock  and  shares  in  trading  and  manufacturing 
corporations,  prevails  in  New  York  and  Pennsylvania.^  It  is 
agreed,  that  trustees  cannot  invest  trust  funds  in  trade,  nor 
directly  in  manufacturing,  nor  in  business  T;enerally,  nor  in  per- 
sonal securities,  unless  there  is  an  authority  contained  in  the 
instrument  of  trust.  The  reasoning  is,  that  trustees  cannot  use 
the  trust  fund  in  carrying  on  a  private  manufacturing  estab- 

»  Ward's  Settlement,  2  John.  &  H.  191;  Ex  parte  Great  No.  Ry.  Co., 
L.  R.  9  Eq.  274;  In  re  Wilkinson,  id.  343. 

*  Wheeler  v.  Perry,  18  N.  H.  307.     [  Drake  v.  Crane,  127  Mo.  85.] 
3  Brown  v.  Wright,  39  Ga.  96. 

*  Ackerman  v.  Emott,  4  Barb.  626;  Hemphill's  App.,  18  Penn.  St.  303; 
Worrall's  App.,  22  id.  44;  Morris  v.  Wallace,  3  id.  319;  Nyce's  Est.,  5  Watts 
&  S.  254.  [  See  also  White  v.  Sherman,  168  111.  589;  Penn  v.  Fogler,  182 
111.  76;  In  re  Allis's  Estate,  123  Wis.  223;  Simmons  t;.  Ohver,  74  Wis.  633.] 

(a)  But  where  the  creator  of  the  or  authorize  an  investment  in  other 
trust  has  directed  that  the  funds  be  securities,  so  lonp;  as  the  required  in- 
invested  in  a  specified  security  and  vestment  is  possible.  Ovey  t'.  Ovey, 
in  no  other,  the  court  will  not  direct  [1900]  2  Ch.  524. 

733 


§  456.]  INVESTMENT.  [CHAP.  XV. 

lishment,  nor  in  the  business  of  private  bankers,  nor  in  under- 
writing, nor  in  trade  and  commerce,  and  that  there  is  no  differ- 
ence in  principle  between  carrying  on  such  enterprises  themselves 
with  the  trust  fund,  or  lending  it  to  other  individuals  to  do  so  on 
their  personal  security,  and  buying  shares  or  stocks  in  such 
business  corporations  carried  on  by  other  private  individuals,  or 
by  the  trustees  themselves,  as  officers  or  agents.  Perhaps  these 
are  the  only  States  in  which  the  strict  English  rule  is  holden. 
In  Maryland,  investments  in  bank  stock,  gas  stock,  etc.,  are 
good.^  In  Massachusetts,  it  is  held  that  trustees  may  invest  in 
bank  stocks,  and  in  the  shares  of  manufacturing  and  insurance 
corporations,^  or  in  the  notes  of  individuals  secured  by  such 
stocks  and  shares  as  collateral  securities,^  or  in  certificates  of  de- 
posit issued  by  a  National  Bank.^  The  court  justifies  this  rule  in 
an  elaborate  opinion,  affirming  that  such  stocks  are  subject  to  no 
greater  fluctuations  than  government  securities;  that  they  are  as 
safe  as  real  securities,  which  may  depreciate  in  value,  or  the 
title  fail;  that  claims  against  such  corporations  can  be  enforced 
at  law,^  while  government  funds  can  only  be  enforced  by  suppli- 
cating the  sovereign  power;  and  that  government  securities  have 
hitherto  been  so  limited  in  amount  that  it  was  impossible  for  the 
trust  funds  of  the  country  to  be  invested  in  that  manner.  The 
last  reason  no  longer  exists.  There  are  now  national,  state, 
county,  town,  and  city  bonds  in  sufficient  amounts  to  absorb  all 
trust  funds  seeking  investment,  and  it  is  not  to  be  denied  that 
such  investments  are  more  permanent  and  safe.     It  may  be 

1  McCoy  V.  Horwitz,  62  Md.  183. 

*  Harvard  Coll.  v.  Amory,  9  Pick.  446. 

»  Lovell  V.  Minot,  20  Pick.  116;  Brown  v.  French,  125  Mass.  410. 

*  Hunt,  Appellant,  141  Mass.  515,  523. 

'  It  is  said  that  loans  by  the  city  of  Boston  always  command  a  higher 
premium  in  the  market  than  the  loans  of  the  Commonwealth.  The  differ- 
ence in  part  is  said  to  be  that  the  city  of  Boston  can  be  sued  upon  its 
contracts,  and  a  judgment  against  it  can  be  satisfied  by  seizing,  upon  an 
execution,  any  property  of  any  citizen  within  the  municipal  Umits;  while 
no  suit  can  be  maintained  against  the  State,  but  everything  depends  upon 
the  good  faith  and  honor  of  the  legislature  in  supplying  the  means  of 
payment. 

734 


CHAP.  XV.]  BANK    SPIARES    AND    CORPORATIONS,  [§  456. 

admitted,  tliat  great  public  emergencies  and  national  dangers 
have  an  unfavorable  efl'ect  upon  the  value  of  public  securities; 
but  such  emergencies  and  dangers  have  the  same  effect  upon 
the  stocks  of  private  corporations.  In  addition  to  these  depress- 
ing influences,  the  capital  of  such  companies  runs  the  risks  and 
chances  of  trade,  business,  and  speculation.  Calamities  that 
depress  public  credit  seldom  occur,  while  the  risks  of  trade  are 
constant.  It  would  seem  to  be  the  wiser  course  to  withdraw  the 
funds,  settled  for  the  support  of  women,  children,  and  other 
parties  who  cannot  exercise  an  active  discretion  in  the  protection 
of  their  interests,  as  much  as  possible  from  the  chances  of  busi- 
ness. It  may  be  said,  that  settlors  may  always  do  this  by  direct- 
ing in  what  manner  the  funds  settled  by  them  shall  be  invested. 
But  it  would  seem  to  be  wiser  for  the  court  to  establish  the  safest 
rule  in  the  absence  of  special  directions,  and  leave  it  to  the 
settlor,  if  he  prefers,  to  direct  a  less  safe  investment.^ 

*  A  large  number  of  cases  have  been  adjudged  in  the  late  confederate 
States,  involving  the  legality  of  investments  by  trustees  in  the  bonds  and 
securities  of  the  confederacy.  No  new  principles  have  been  so  established 
that  it  is  necessary  to  alter  the  text;  but  for  convenience  the  principal 
cases  are  noted  in  this  place.  Under  §  34  of  the  act  of  Nov.  9,  1861,  of 
Alabama,  which  authorized  trustees  to  invest  in  confederate  bonds,  or  to 
receive  payment  in  confederate  notes,  it  was  held  that  trustees  were  jus- 
tified in  making  such  investments  previous  to  the  re-estabhshment  of  the 
authority  of  the  United  States.  Watson  v.  Stone,  40  Ala.  451;  Dockey  t'. 
McDowell,  41  Ala.  476.  But  a  guardian  was  held  Uable  to  account  for 
the  cash  in  full,  who  received  payment  in  confederate  notes  after  the 
re-establishment  of  such  authority.  Where  a  trustee  procured  an  ex  parte 
order  to  invest  in  confederate  bonds,  he  was  held  liable  for  the  loss.  Snell- 
ing  V.  McCreary,  14  Rich.  Eq.  291.  Where  a  trustee  received  payment 
of  a  debt  due  to  the  trust  fund,  in  the  currency  in  common  use,  and  re- 
invested it  in  securities  which  became  worthless  by  the  result  of  the  war,  he 
was  not  held  liable  for  the  loss.  Campbell  r.  Miller,  38  Ga.  304.  To  the 
same  effect  is  Brown  v.  Wright,  39  Ga.  96,  which  contains  an  able  state- 
ment of  the  policy  of  the  English  government  in  directing  trust  funds  to 
be  invested  in  public  securities. 

In  Virginia,  commissioners  who  collected  money  by  order  of  the  court 
in  confederate  notes,  and  held  a  balance  subject  to  contested  lions  until  it 
became  worthless,  were  held  not  liable  for  the  loss.  Davis  v.  Harman,  21 
Grat.  200.  And  substantiallj'  the  same  rule  was  held  in  Dixon  !;.  McCue, 
21  Grat.  374.    In  Morgan  v.  Otey,  21  Grat.  619,  it  was  held  that  payments 

735 


§  457.]  INVESTMENT.  [CHAP.  XV. 

§  457.  The  power  to  lend  on  mortgage  was  doubted  or  denied, 
until  Lord  St.  Leonards'  act,  unless  there  was  an  express  power 
in  the  instrument  of  trust,  or  a  decree  of  the  court.  Lord  Har- 
court.  Lord  Hardwicke,  and  Lord  Alvanley  appeared  to  have 
thought  that  a  trustee  or  executor  might  invest  the  money  in 
well-secured  real  estates}  But  Lord  Thurlow  said,  that  in  latter 
times  the  court  had  considered  it  improper  to  invest  any  part  of 

should  be  made  in  the  currency  of  the  day.  See  Kraken  v.  Shields,  20  Grat. 
377.  In  Walker  v.  Page,  21  Grat.  637,  it  was  held  that  a  sale  of  infant's 
lands  for  confederate  money  was  valid  at  the  time  it  was  made,  and  that 
further  development  of  events  did  not  vitiate  it.  In  Myers  v.  Zetelle,  21 
Grat.  733,  it  was  held  that  an  agent  or  trustee  who  in  good  faith  sold  prop>- 
erty,  and  invested  the  proceeds  in  confederate  securities,  at  a  time  when 
no  other  investments  were  open  to  him,  was  protected  from  loss.  And  see 
Bird  V.  Bird,  21  Grat.  711;  Beery  v.  Irick,  22  Grat.  614;  Campbell  v.  Camp- 
beU,  id.  649;  Colrane  v.  Worrel,  30  Grat.  434. 

In  State  v.  Simpson,  65  N.  C.  497,  it  was  held  that  a  guardian  who 
collected  in  money  which  was  well  secured  to  his  ward,  and  invested  the 
same  in  confederate  bonds,  was  guilty  of  laches,  and  was  liable  for  the 
loss.  See  Alexander  v.  Summey,  66  N.  C.  578.  An  agent  or  trustee  is 
authorized  to  receive  payment  of  debts  in  the  currency  received  by  prudent 
business  men  for  similar  purposes.  Baird  v.  Hall,  67  N.  C.  230.  See 
Wooten  V.  Sherrard,  68  N.  C.  334. 

In  Creighton  v.  Pringle,  3  S.  C.  78,  a  trustee  was  held  guilty  of  a  breach 
of  trust  in  investing  in  confederate  bonds.  Cureton  v.  Watson,  3  S.  C.  451. 
But  see  Hinton  v.  Kennedy,  id.  459. 

If  a  trustee,  acting  in  good  faith,  receive  funds  in  bank-notes  which  are 
depreciated,  he  will  be  protected  if  such  notes  were  the  only  money  attain- 
able.   Barker  v.  McAuley,  4  Heisk.  424. 

When  a  trustee  kept  the  identical  money  received  by  him,  he  was 
allowed  to  turn  it  over  to  the  person  entitled  to  receive  it,  without  loss  to 
himself;  but  if  he  has  not  kept  it,  he  will  be  charged  with  the  nominal 
sums  collected  by  him.    Saunders  v.  Gregory,  3  Heisk.  507. 

In  Texas,  trustees  could  not  receive  confederate  money  in  discharge  of 
obligations  to  them.  Turner  v.  Turner,  36  Tex.  41.  And  see  Scott  v. 
Atchison,  id.  76;  Kleberg  v.  Bond,  31  Tex.  611;  Woods  v.  Toombs,  36 
Tex.  85;  Turpin  v.  Sanson,  id.  142;  McGar  v.  Nixon,  id.  289;  Lacey  v. 
Clements,  id.  661. 

In  the  Supreme  Court  of  the  United  States  payment  to  an  agent  or 
trustee  in  anything  but  lawful  money  of  the  United  States,  or  bank-notes 
of  the  current  value  of  their  face,  is  held  invalid.  Ward  v.  Smith,  7  Wall. 
451;  Horn  v.  Lockhart,  17  Wall.  570;  McBurney  v.  Carson,  99  U.  S.  567. 

1  Brown  v.  Litton,  1  P.  Wms.  141;  Lyse  v.  Kingdon,  1  Coll.  188;  Knight 
V.  Plymouth,  1  Dick.  126;  Pocock  v.  Reddington,  5  Ves.  800. 

736 


CHAP.  XV.]  REAL   SECURITIES.  (§  457. 

a  lunatic's  estate  upon  private  security.^  Sir  John  Leach  refused 
to  allow  an  infant's  money  to  be  invested  in  that  manner,  and 
expressed  surprise  that  any  precedent  could  be  found  to  the 
contrary."  In  a  late  case,  the  trustees  invested  in  mortgages  at 
the  request  of  the  tenant  for  life,  and  to  procure  a  higher  rate 
of  interest,  and  they  were  held  liable  for  the  loss;  but  the  case 
did  not  go  to  the  full  extent  of  deciding  that  trustees  could  not 
invest  on  real  securities,  for  the  reason  that  they  had  consulted 
the  interests  of  the  tenant  for  life,  at  the  expense  of  those  of  the 
remainder-man,  but  the  court  did  not  favor  mortgages.^  If 
trustees  are  directed  to  invest  in  public  funds,  of  course  they 
cannot  invest  in  mortgages.^  Previous  to  the  acts  before  men- 
tioned,^ courts  did  not  sanction  mortgages;  ^  but  the  practice  is 
now  relaxed,  and  a  loan  upon  freeholds  of  inheritance  to  the 
extent  of  two-thirds  of  their  value  may  be  allowed.^  But  the 
rule  of  two-thirds  is  not  inflexible.  It  may  be  improper  to  loan 
even  two-thirds  of  the  present  value ;  as,  where  the  value  depends 
upon  the  chances  of  trade  or  business,  and  where  the  property 
consists  of  houses  liable  to  deterioration.^  So  it  may  not  be  a 
breach  of  trust  under  certain  circumstances  to  loan  more  than 
two-thirds.^  (a)    Trustees  ought  not  to  lend  on  a  second  mort- 

»  Ex  parte  Calthorpe,  1  Cox,  182;  Ex  parte  Ellice,  Jac.  234. 

*  Norbury  v.  Noibury,  4  Madd.  191;  Widdowson  v.  Duck,  2  Mer.  494; 
Ex  parte  Fust,  1  C.  P.  Coop.  (t.  Cott.)  157,  n.  (e);  Ex  parte  Franklyn,  1 
De  G.  &  Sm.  531;  Ex  parte  Johnson,  1  Moll.  128;  Ex  parte  Ridgway,  1 
Hog.  309. 

«  Raby  v.  Ridehalgh,  7  De  G.,  M.  &  G.  108. 

*  Pride  V.  Fooks,  2  Beav.  430;  Waring  v.  Waring,  3  Ir.  Ch.  331. 
»  Ajite,  §  455. 

«  Barry  v.  Marriott,  2  De  G.  &  Sm.  491;  Ex  parte  Franklyn,  1  DcG. 
&  Sm.  531. 

^  Stickney  i-.  Sewell,  1  Myl.  <fe  Cr.  8;  Norris  v.  Wright,  14  Beav.  307; 
Macleod  v.  Annesly,  16  Beav.  600. 

«  Ibid.;  Phillipson  v.  Gatty,  7  Hare,  16;  Drosier  i'.  Brereton,  15  Beav. 
221;  Stretton  v.  Ashmall,  3  Dr.  9;  3  De  G.  26;  24  L.  J.  Ch.  277;  Farrar  v. 
Barraclough,  2  Sm.  &  Gif.  231.    [  Rae  v.  Meek,  14  A.  C.  558.] 

'  Jones  V.  Lewis,  3  De  G.  <&  Sm.  471.  This  case  was  reversed  on  appeal. 
See  Lewin  on  Trusts,  263  (5th  ed.). 

(a)  In  some  States  statutes  have  at  least  double  the  amoimt  of  the 
provided  that  the  real  estate  must  be     mortgage.    N.  H.  Pub.  St.  (1901),  c. 

VOL.  I.  —  47  737 


§458. 


INVESTMENT. 


[chap.  XV. 


gage,  though  it  might  not  be  a  breach  of  trust  in  all  cases  to  do 
so ;  ^  and  so  they  ought  to  have  a  power  of  sale  inserted  in  the 
deed,  although  it  might  not  be  a  breach  of  trust  to  neglect  it."^ 

§  458.  There  can  be  no  doubt  that  mortgages  on  real  estate 
are  considered  proper  investments  in  the  United  States,  and 
perhaps  they  are  the  only  investments  which  are  not  objection- 

'  Norris  v.  Wright,  14  Beav.  291;  Drosier  v.  Brereton,  15  Beav.  221; 
Robinson  v.  Robinson,  11  Beav.  371;  1  De  G.,  M.  &  G.  247;  Waring  v. 
Waring,  3  Ir.  Eq.  337;  Lockhart  v.  Reilly,  1  De  G.  &  J.  476;  Nance  v.  Nance, 
1  S.  C.  209.  [  In  re  Blauvelt's  Estate,  20  N.  Y.  S.  119;  Taft  v.  Smith,  186 
Maas.  31.] 

2  Farrar  v.  Barraclough,  2  Sm.  &  Gif.  231. 


198,  §  11,  c.  178,  §  9;  N.  J.  Laws  of 
1899,  ch.  103.  Mr.  Loring  states 
that  this  is  the  usual  margin  of  se- 
curity required.  Loring's  Trustee's 
Handbook,  (3d  ed.)  p.  116.  See  1 
Ames,  Cases  on  Trusts,  (2d  ed.) 
485,  n.  By  statute  in  New  York  the 
value  of  the  real  estate  must  exceed 
the  amount  of  the  mortgage  by  at 
least  50  per  cent,  IV  N.  Y.  Consol. 
Laws  (1909),  p.  2847,  §  21.  In  In  re 
Somerset,  [1894]  1  Ch.  231,  Keke- 
wich,  J.,  referring  to  Speight  v. 
Gaunt,  9  A.  C.  1,  and  Learoyd 
V.  Whiteley,  12  id.  727,  said 
in  substance:  When  there  is  no 
actual  breach  of  trust,  trustees  are 
simply  judged  by  the  rule  that  they 
are  to  exercise  ordinary  care  and 
prudence  in  the  discharge  of  their 
duties.  Their  liability,  as  regards 
any  particular  transaction,  is  not  in- 
creased by  reason  of  the  fact  that 
one  of  their  number  is  skilled  in  the 
business  with  which  the  transaction 
is  concerned.  As  regards  invest- 
ments in  mortgages,  it  is  the  duty  of 
the  trustees  to  decide  for  themselves, 
and  to  exercise  their  own  judgment, 

738 


as  to  the  suflBciency  of  the  securities, 
even  though  a  surveyor,  solicitor,  or 
other  trusted  agent,  has  expressed  to 
them  his  opinion  on  the  subject. 
There  is  no  absolute  rule  respecting 
the  choice  of  securities  falling  within 
the  strict  limits  of  authorized  invest- 
ments, or  the  amount  proper  to  be 
advanced  against  any  particular  se- 
curity. In  this  case  it  was  said  to  be 
wrong  for  the  trustee  to  advance  a 
sum  largely  in  excess  of  what  was 
otherwise  right  because  it  was  be- 
lieved that  the  mortgagor  was  per- 
sonally good  for  the  loan. 

In  Learoyd  v.  Whiteley,  12  A  pp. 
Cas.  727,  733,  and  in  In  re  Salmon, 
42  Ch.  Div.  351,  367,  the  court, 
without  attempting  to  lay  down  any 
fixed  rule,  expressed  the  opinion  that 
where  the  mortgage  security  is  agri- 
cultural land  the  margin  of  value 
should  not  be  less  than  one-third  the 
value  of  the  land,  and  where  the  land 
derives  its  value  from  buildings 
erected  on  it  or  from  use  in  trade, 
the  margin  of  value  should  not  be 
less  than  one-half. 


CIIAP.  XV.]  REAL   SECURITIES.  [§  458. 

able  in  some  one  of  the  States.  In  the  absence  of  public  funds 
to  an  amount  hitherto  sufficient  to  absorb  the  money  to  be 
invested  by  trustees,  different  rules  have  been  established  in  the 
several  States,  but  mortf^'a^'cs  upon  estates  of  inheritance,  taken 
with  proper  caution  as  to  the  amount  and  the  title,  have  been 
named  in  all  the  States  as  proper  and  safe  investments;  so  that 
the  question  in  the  United  States  is  whether  the  security  is  in 
fact  what  it  is  called,  security  upon  real  estate.  A  loan  to  a 
company  owning  coal  lands  and  a  canal,  to  a  much  greater  value 
than  its  debts,  the  interest  on  the  loan  being  a  preferred  claim 
upon  the  income,  was  held  to  be  substantially  on  real  estate;  ^ 
but  an  investment  in  the  stock  of  a  similar  company,  which 
stock  was  not  preferred,  was  held  to  be  a  breach  of  trust .^  An 
investment  in  railway  bonds,  secured  by  a  mortgage  of  the 
road-bed,  franchise,  and  other  property,  is  not  real  security, 
though  real  estate  is  covered  by  the  mortgage;  for  the  method  of 
enforcing  such  a  bond  is  very  different  from  the  ordinary  man- 
ner of  foreclosing  a  mortgage,  and  whether  such  a  bond  can  be 
enforced  at  all  depends  upon  the  concurrent  will  of  so  many 
bondholders,  that,  at  best,  it  is  only  nominal  real  estate.^  Lon- 
don Dock  stock  and  sewer  bonds  are  not  real  security.''  It  is 
not  a  breach  of  trust  to  leave  funds  in  turnpike  bonds,  secured 
by  a  mortgage  of  the  tolls  and  real  estate  of  the  company,  as 
they  had  been  invested  by  the  testator.*  Under  the  right  of 
the  trustees  to  invest  trust  funds  in  real  securities,  they  cannot 
convert  the  funds  into  real  estate  by  taking  the  legal  title  abso- 
lutely to  themselves  in  trust;  and  if  they  do  so,  the  cestui  que 

>  Twaddell's  App.,  5  Penn.  St.  1.5. 

2  Worrall's  App.,  21  Penn.  St.  oOS. 

=*  Mant  V.  Leith,  1.5  Beav.  524;  Allen  v.  Gaillard,  3  S.  C.  279.  It  is  not 
sufficient  for  a  trustee  to  say,  in  defence  of  an  investment,  that  it  is  on  real 
security.  There  are  other  things  to  be  considered,  the  nature  of  the  prop- 
erty and  other  matters.  The  property,  though  sufficient,  may  be  involved 
in  litigation.  Per  Master  of  Rolls  in  Mant  v.  Leith.  [  See  Clark  v.  Ander- 
son, 13  Bush,  (Ky.)  Ill,  119.] 

*  Robinson  v.  Robinson,  11  Beav.  371. 

*  Robinson  v.  Robinson,  21  L.  J.  Ch.  Ill;  1  De  G.,  M.  &  0.  247;  Miller 
r.  Proctor,  20  Ohio  St.  444. 

739 


§  458.)  INVESTMENT.  [CHAP.  XV. 

trust  may  elect  to  take  the  land,  or  the  trust-money  and  inter- 
est; ^  though  a  direction  to  invest  in  productive  real  estate  was 
held  to  justify  the  purchase  of  dwelling-houses,  or  the  purchase 
of  a  right  of  dower  in  order  to  render  the  property  more  pro- 
ductive.^ If  a  testator  has  already  invested  in  mortgages,  a 
trustee  may  make  such  further  advances  of  money  as  are  neces- 
sary to  secure  the  first  investment.  No  general  rule  can  be 
stated ;  but  the  trustee  in  such  case  must  make  a  careful  investi- 
gation and  exercise  a  sound  discretion,  or  his  advances  will  not 
be  allowed  in  case  of  a  loss.^  And  so  a  guardian,  in  case  of  a 
grave  emergency,  may  buy  in  land  for  the  minor  to  save  a  cer- 
tain loss;^  so  an  administrator  may  buy  in  the  land  of  a  debtor 
to  his  estate  to  save  the  debt.^  (a)  Such  an  investment  is  a 
mere  temporary  expedient,  and  is  to  be  treated  as  personal 
estate.^    A  loan  of  trust  funds  on  real  mortgage  does  not  change 

'  Mathew3  v.  Heyward,  2  S.  C.  239;  Ouseley  v.  Anstruther,  10  Beav. 
456;  Rover's  App.,  11  Pa.  St.  36;  Kaufman  v.  Crawford,  9  Watts  &  S.  131; 
Bonsall's  App.,  1  Rawle,  273;  Bellington's  App.,  3  Rawle,  55;  Ringgold 
V.  Ringgold,  1  H.  &  G.  11;  Morton  v.  Adams,  1  Strob.  Eq.  72;  Heth  v.  Rich- 
mond, &c.,  Co.,  4  Grat.  482;  Eckford  v.  De  Kay,  8  Paige,  89;  Winclielsea 
V.  Nordcliffe,  1  Vern.  134.  And  if  a  mortgage  is  given  back,  the  mortgagor, 
if  he  have  notice  of  the  misapphcation  of  the  trust  fund,  cannot  enforce  his 
mortgage  until  the  fund  has  first  been  replaced.  Mathews  v.  Heyward, 
2  S.  C.  239. 

^  Parsons  v.  Winslow,  16  Mass.  368. 

'  Collinson  v.  Lister,  20  Beav.  356. 

*  Bonsall's  App.,  1  Rawle,  273;  Royer's  App.,  11  Penn.  St.  36. 

*  Bellington's  App.,  3  Rawle,  55. 

«  Oeslager  v.  Fisher,  2  Penn.  St.  467. 

(a)  A  trustee  with  no  authority  shrinkage  in  value  of  certain  trust 
to  purchase  land  may  be  authorized  real  estate,  had  authority  to  contrib- 
by  court  to  buy  in  on  foreclosing  a  ute  over  .$20,000,  from  the  fund,  by 
mortgage  investment  where  this  way  of  donation  towards  the  build- 
course  is  necessary  to  protect  the  ing  of  a  hotel  on  neighboring  prop- 
trust  estate  from  lass.  In  re  Bellah,  erty  when  the  effect  of  having  the 
8  Del.  Ch.  59;  In  re  Baker,  8  Del.  Ch.  hotel  there  was  to  incr.?'asc  greatly 
355.  the  value  of  the  trust  real  estate. 

It  has  been  held  that  a  trustee  Drake  v.  Crane,  127   Mo.  85.     But 

who  was  directed  to  hold  and  invest  this  seems    to    be    an    exceptional 

a  certain  fund  of  personalty  as  a  re-  case, 
serve  fund  to  guard  against  losses  by 

740 


CILVP.  XV.]  INVESTMENT.  [§  459. 

the  character  of  the  funds,  nor  constitute  an  investment  in  real 
estate.^  The  court  may  order  an  investment  of  accumulations, 
or  of  the  principal  fund  temporarily  in  real  estate,  witli  a  declar- 
ation that  it  shall  continue  personalty;-  and  so  a  court  may 
order  an  investment  in  real  estate  generally,  where  no  other  way 
is  pointed  out  in  the  trust  instrument.^  Where  a  trustee  or 
guardian  is  obliged  to  take  land  subject  to  a  mortgage,  the  trus- 
tee becomes  personally  liable  to  pay  off  the  mortgage,  to  pro- 
tect the  interest  of  the  cestui  que  trust.  In  such  case,  the  guar- 
dian or  trustee  may  have  the  possession  of  the  estate  or  the 
management  of  the  trust  fund,  in  order  to  secure  himself  for 
the  advancement  so  made."*  But  there  must  be  an  urgent  neces- 
sity to  justify  such  a  proceeding.  If  a  trustee  is  authorized  to 
invest  in  real  estate,  stock,  or  securities,  he  cannot  mortgage  the 
trust  fund  in  order  to  raise  money  to  invest  in  such  manner,  nor 
invest  in  machinery  for  the  use  of  the  cestui  que  trust}  (a)  In  all 
cases  the  trustee  ought  to  exercise  high  diligence  in  ascertaining 
the  valuation,  situation,  condition,  and  productiveness  of  the 
real  estate  or  other  property  upon  which  it  is  proposed  to  make 
a  loan  of  the  trust-money;  for  he  will  be  liable  for  the  loss  if  he 
is  guilty  of  any  negligence  in  this  respect.^ 

§  459.  In  a  few  States,  there  are  statutes  authorizing  trustees 
to  invest  in  a  particular  manner,  and  excusing  them  from  respon- 

1  Milhous  V.  Dunham,  78  Ala.  48. 

2  Webb  V.  Shaftesbury,  6  Madd.  100. 

3  Ex  parte  Cahnes,  1  Hill,  Eq.  112. 

*  Woodward's  App.,  38  Penn.  St.  322. 

*  Rider  v.  Sisson,  7  R.  I.  341.  [See  Warren  v.  Pazolt,  203  Mass.  328, 
349,  351.1 

'  Bud^e  V.  Gummon,  L.  R.  7  Ch.  721;  Smethurst  v.  Hastings,  30  Ch. 
D.  490;  Olive  v.  Westerman,  34  Ch.  D.  70;  WTiiteley  v.  I^aroyd,  33  Ch. 
D.  347.    [  Gilbert  v.  Kolb,  85  Md.  627;  In  re  Roach's  Estate,  50  Or.  179.] 

(a)  It  has  been  held  that  a  trus-  part  of  the  purcha^'^e  price.  Hannah 
tee  who  has  been  authorized  to  in-  v.  Carnahan,  Go  Micii.  001.  \  see- 
vest  in  real  estate  but  who  has  been  ond  mortgage  given  by  the  trustee 
given  no  express  power  of  mortgage,  subsequently  for  an  advance  of 
may  give  back  a  valid  mortgage  for  money  was  held  to  be  void.    Ibid. 

741 


§  459.]  INVESTMENT.  [CHAP.  XV. 

sibility  if  their  investments  are  made  in  good  faith  in  the  pre- 
scribed securities,  (a)  Thus  in  Pennsylvania/  an  executor, 
guardian,  or  trustee  may  apply  to  the  Orphans'  Court,  and  the 
court  may  direct  an  investment  in  the  stocks  or  public  debt  of 
the  United  States,  of  the  State,  or  of  the  city  of  Philadelphia,  or 
in  real  securities,  or  in  the  stock  of  the  incorporated  districts  of 
Philadelphia  County,  of  Pittsburg  and  Alleghany,  and  the  water- 
works of  Kensington,  Philadelphia  County.  But  it  has  been  held 
that  trustees  are  not  confined  to  these  funds;  that  the  acts  are 
for  their  benefit;  that  they  can  elect  other  kinds  of  investment, 
but  will  be  responsible  for  losses.^  In  New  York,  there  does  not 
appear  to  be  any  legislation  on  the  subject;  but  trustees  are 
bound  by  the  rules  of  the  court  to  invest  in  real  securities,  or 
government  bonds,  or  in  the  State  loan,  or  in  loans  of  the  New 
York  Life  Insurance  and  Trust  Company.^  (6)  In  New  Jersey, 
a  statute  authorized  an  investment  to  be  made  upon  an  appli- 
cation to  the  court,  but  does  not  establish  any  particular 
funds,  (c)  In  Gray  v.  Fox,  the  court  laid  down  the  rule  that 
investments  must  be  made  in  government  stocks,  or  in  real 
security.^     In  Maryland,  there  is  neither  statute  nor  rule  of 

1  Acts  1832,  1838,  1850,  1852.  [  Brightly's  Purdon's  Dig.  of  Pa.  St. 
(1894),  p.  593,  §§  121,  122,  123;  Pa.  Const.  §  69.] 

2  Barton's  Est.,  1  Pars.  Eq.  24;  Worrall's  App.,  9  Ban,  108;  Twaddell's 
App.,  5  Penn.  St.  15. 

3  Ackerman  v.  Emott,  4  Barb.  626;  and  see  Smith  v.  Smith,  4  Johns. 
Ch.  281,  445;  King  v.  Talbott,  40  N.  Y.  86,  97.  This  case  contains  a  full 
discussion  of  the  law  in  New  York.    Hun  v.  Gary,  82  N.  Y.  65. 

*  Gray  v.  Fox,  Saxton,  259;  Lathrop  v.  Smalley,  23  N.  J.  Eq.  192;  Cor- 
liss V.  Corliss,  id. 

(a)  See  these  statutes  collected  investment  in  mortgages    on  eecu- 

in  Loring's  Trustee's  Handbook  (3d  rity  of  real  estate  worth    twice  the 

ed.),  117;  1  Ames  on  Trusts  (2d  ed.),  amount  loaned,  bearing  interest  be- 

486,  n.;  and  9  L.  R.  A.  279,  280,  n.;  tween  3%  and  6%,  in  bonds  of  the 

Clark  V.  Beers,  61  Conn.  87.  United  States  and  of  the  State  of 

(6)  For  legislation  in  New  York,  New  Jersey,  and  in  certain  munici- 

eee  IV  Consol.  Laws  (1909),  p.  2847,  pal  bonds.    By  Laws  of  1903,  c.  146, 

§  21;  I  id.  p.  155,  §  146.  the  field  of  investment  is  extended 

(c)  By  Laws  of  New  Jersey,  1899,  to  include  securities  authorized  for 

c.  103,   trustees  are    authorized   to  savings  banks. 
742 


CHAP.  XV.]  INVESTMENT.  [§  459. 

court  to  guide  the  trustees.  The  courts  do  not  approve  of 
changes  in  investments,  unless  express  power  is  given  in  the 
instrument  of  trust;  as  where  a  testator  gave  certain  stocks  in 
trust  without  direction  to  vary  the  security,  and  the  trustee  dis- 
posed of  the  stocks  and  invested  the  money  in  other  securities, 
he  was  ordered  to  replace  the  entire  sum  in  the  same  stocks,  al- 
though the  number  of  shares  were  increased  by  the  change.'  In 
Maine,  New  Hampshire,  (a)  Vermont,  Michigan,  and  Missouri, 
the  courts  may,  upon  application,  direct  trustees  as  to  the  man- 
ner of  investment,  but  no  special  investments  are  pointed  out.' 
If  trustees  invest  according  to  the  direction  of  the  courts,  they 
are  not  responsible  for  any  loss.  In  Georgia,  if  trustees  invest 
in  the  stocks,  bonds,  or  other  securities,  issued  by  their  own 
State,  or  in  such  other  securities  as  shall  be  ordered  by  the  court, 
they  will  be  exempt  from  loss.'  In  ^Mississippi,  an  investment 
in  bank  stocks  is  allowed.''  In  States  where  there  are  no  statutes 
nor  rules  of  court  regulating  investments,  trustees  are  bound  to 
act  in  good  faith  and  with  a  sound  discretion  in  investing  trust- 

»  Murray  v.  Feiaour,  2  Md.  Ch.  418;  Evans  i-.  Iglehart,  6  Gill  &  J.  192; 
Gray  v.  Lynch,  8  Gill,  405;  Hammond  v.  Hammond,  2  Bland,  306.  [  See 
Hunt  V.  Gontrum,  80  Md.  64;  Lowe  v.  Convention,  83  Md.  409.] 

2  Knowlton  v.  Brady,  17  N.  H.  458.  It  is  impossible  to  cite  the  statutes 
of  all  the  States.  Practising  attorneys  will  of  course  know  the  legislation 
of  their  own  States. 

*  [  Ga.  Code,  (1895)  §  3180.  Any  other  investment  must  be  under  order 
of  the  court,  or  else  at  the  risk  of  the  trustee.]  Brown  v.  Wright,  39  Ga.  96. 

*  Smyth  V.  Burns,  25  Miss.  422.  These  rules  and  regulations  are  estab- 
lished for  the  protection  of  trustees:  so  long  as  they  in  good  faith  confine 
their  investments  to  those  allowed  by  law,  they  are  protected  from  loss. 
Stanley's  App.,  8  Penn.  St.  432;  Twaddell's  App.,  9  id.  108;  Seidler's  Est., 
5  Phila.  85;  Barton's  Est.,  1  Pars.  Eq.  24;  Johnson's  App.,  43  Penn.  St. 
431;  Morris  v.  Wallace,  3  id.  319;  McCahan'a  App.,  7  id.  56;  Hemphill's 
App.,  18  id.  303;  Rush's  Est.,  12  id.  378;  Nyce's  Est.,  5  Watts  &  S.  254. 

(a)  In  New  Hampshire  a  statute  of  the  United  States,  of  the  State 

prescribes  investment  in   mortgages  of  New  Hampshire,    or  of  certain 

upon  security  of  real  estate  worth  municipal  corporations.     N.  H.  Pub. 

at  least  double  the  amount  of  the  St.  [1901],  c.  198,  §   11;  c.  178,  §  9. 

loan,  or  in  savings  banks  incorpo-  See  also  c.  178,  §  8. 
rated  in  New  Hampshire,  or  in  banks 

743 


§459. 


INVESTMENT. 


[chap.  XV. 


money;  and  if  they  so  act  they  are  not  responsible  for  any  loss 
that  may  happen.^  (a)  But  to  invest  in  mere  personal  securities 
is  not  a  sound  discretion  anywhere.^  Nor  is  it  a  sound  discre- 
tion for  trustees  to  subscribe  trust  funds  to  new  enterprises,  as 
for  the  stock  of  new  manufacturing,  insurance,  or  railroad  cor- 
porations, when  the  undertaking  must,  in  the  nature  of  things, 
be  experimental ;  and  it  will  not  excuse  the  trustee  that  he  sub- 
scribes his  own  money  to  such  enterprises,  as  it  is  permitted  to 
him  to  speculate  with  his  own  money  if  he  sees  fit.^ 

1  Clark  V.  Garfield,  8  Allen,  427.  [  Peckham  v.  Newton,  15  R.  I.  321; 
Emery  v.  Batchelder,  78  Me.  233;  Massey  v.  Stout,  4  Del.  Ch.  274,  288. 
See  also  Citizens'  Nat.  Bank  v.  Jefferson,  88  Ky.  651,  659;  Durrett's  Guard- 
ian V.  Commonwealth,  90  Ky.  312.] 

2  Ante,  §  4.53. 

3  Kimball  v.  Reading,  31  N.  H.  352;  Ihmsen's  App.,  43  Penn.  St.  471. 


(a)  The  Massachusetts  rule,  as 
laid  down  in  Harvard  College  v. 
Amory,  9  Pick.  446,  and  followed  in 
many  subsequent  decisions,  is  that 
trustees  should  "observe  how  men  of 
prudence,  discretion,  and  intelligence 
manage  their  own  affairs,  not  in  re- 
gard to  speculation,  but  in  regard 
to  the  permanent  disposition  of  their 
funds,  considering  the  probable  in- 
come, as  well  as  the  probable  safety 
of  the  capital  invested."  Thayer  v. 
Dewey,  185  Mass.  68;  Taft  v.  Smith, 
186  Mass.  31;  Green  v.  Crapo,  181 
Mass.  55;  Pine  v.  White,  175  Mass. 
585,  590.  In  applying  the  rule,  in 
Dickinson,  Appellant,  152  Mass. 
184,  187,  the  court  said:  "A  trustee, 
whose  duty  it  is  to  keep  the  trust 
fund  safely  invested  in  productive 
property,  ought  not  to  hazard  the 
safety  of  the  property  under  any 
temptation  to  make  extraordinary 
profits.  Our  cases,  however,  show 
that  trustees  in  this  Commonwealth 
are  p)ermitted  to  invest  portions  of 
trust  funds  in  dividend-paying  stock 
and  interest-bearing  bonds,  of  pri- 

744 


vate  business  corporations,  when  the 
corporations  have  acquired,  by  rea- 
son of  the  amount  of  their  property, 
and  the  prudent  management  of 
their  affairs,  such  a  reputation  that 
cautious  and  intelligent  persons 
commonly  invest  their  own  money 
in  such  stocks  and  bonds  as  per- 
manent investments."  In  this  case 
the  trustees  having  invested  about 
$3500,  between  one-fourth  and  one- 
fifth  of  the  total  tnist  fund,  in  the 
stock  of  the  Union  Pacific  Railroad 
in  1881,  then  a  comparatively  new 
road  running  largely  through  an  un- 
settled country,  invested  $2500  of 
the  funds  in  the  same  stock.  The 
last  investment  was  held  not  a  pru- 
dent investment,  although  the  first 
investment  was  allowed.  An  impor- 
tant consideration  with  the  court 
seems  to  have  been  that  so  large  a 
proportion  of  the  trust  fund  was  put 
into  this  somewhat  risky  investment. 
For  a  similar  decision  on  very  simi- 
lar facts,  see  Davis,  Appellant,  183 
Mass.  499.  See  also  Warren  v. 
Pazolt,  203  Mass.  328,  345  et  seq. 


CHAP.  XV.] 


INVESTMENT. 


[§  460. 


§  400.  The  instrument  of  trust  frequently  contains  directions 
respecting  the  investment  of  the  trust  funds.  If  the  directions 
are  so  general  that  they  do  not  point  to  any  particular  class  or 
classes  of  investments,  the  trustees  must  invest  in  those  securi- 
ties that  are  sanctioned  by  the  court;  as,  if  the  trust  is  to  invest 
in  good  and  sufficient  security,"  the  court  will  sanction  no 
security  not  allowed  by  its  rules  and  orders.^  If  the  trustee  is  to 
invest  at  his  "discretion,"  he  cannot  invest  in  personal  secur- 
ities.'^ (j)     The  powers  and  directions  given  in  the  instrument 

[  Randolph  v.  E.  Birmingham  Land  Co.,  104  Ala.  355;  Aydclott  v.  Breeding, 
111  Ky.  847;  Matter  of  Hall,  164  N.  Y.  196;  Mattocks  v.  Moulton,  84  Me. 
545.] 

1  Booth  V.  Booth,  1  Beav.  125;  Trafiford  v.  Boehm,  3  Atk.  440;  De  Manne- 
ville  V.  Crompton,  1  V.  &  B.  259;  Wilkes  v.  Steward,  Coop.  6;  Ryder  v. 
Bickerton,  3  Swanst.  SO,  n.;  Nance  v.  Nance,  1  S.  C.  209;  Womack  v.  Austin, 
id.  421.  [  Clark  v.  Clark,  50  N.  Y.  S.  1041;  Caspari  i;.  Cutcheon,  110  Mich. 
86.] 

-  Ibid.;  Pocock  v.  Reddington,  5  Ves.  794;  Wormley  i'.  Wormley,  8 
Wheat.  421;  1  Brock.  339;  Langston  v.  Ollivant,  Coop.  33. 


(a)  The  creator  of  the  trust  may 
extend  the  field  of  investments  into 
which  the  trustee  may  properly  put 
the  trust  money,  either  by  designat- 
ing certain  investments  or  by  general 
words.  Bartol's  Estate,  182  Pa.  St. 
407;  In  re  AUis's  Estate,  123  Wis. 
223;  In  re  Smith,  [1896]  1  Ch.  71. 
But  unless  the  language  of  the  trust 
instrument  is  mandatory,  a  trustee 
making  investments  within  the  ex- 
tended field  is  not  relieved  from  the 
responsibilitj'  of  exercising  the  care 
and  prudence  which  a  reasonable 
man  would  exercise  in  making  per- 
manent investments  for  the  purpose 
of  insuring  a  steady  income.  Gilbert 
V.  Kolb,  85  Md.  627;  Rae  v.  Meek, 
14  App.  Cas.  558;  Hutton  v.  Annan, 
[1898]  A.  C.  289;  In  re  Turner, 
[1897]  1  Ch.  536;  In  re  Sharp,  45 
Ch.  Div.  286,  289. 

A  trustee  who  has  been  expressly 


directed  or  authorized  by  the  trust 
instrument  to  invest  at  his  discre- 
tion, or  as  he  may  think  proper  or 
best,  must  exercise  the  care  and  pru- 
dence usual  with  investors  who  are 
seeking  to  place  their  funds  where 
they  will  be  reasonably  sure  of  the 
ultimate  return  of  their  principal  and 
of  a  reasonable  rate  of  income.  He 
must  not  speculate  for  the  purpose 
of  increasing  the  principal  nor  invest 
in  hazardous  enterprises  or  upon  se- 
curity of  speculative  value  for  the 
purpose  of  getting  an  extra  large  in- 
come. His  duty  is  to  be  measured 
by  the  usual  conduct  of  a  man  of 
ordinary  prudence  making  perma- 
nent investments  of  hi.s  own  savings 
outside  of  ordinary  business  risks. 
Hart's  Estate,  203  Pa.  St.  480;  In  re 
Allis's  Estate.  123  Wis.  223;  Pabst 
V.  Goodrich,  133  Wis.  43;  Matter  of 
Hall,   164  N.  Y.   196;  Mattocks  v. 

745 


§  460.] 


INVESTMENT. 


[CflAP.  XV. 


must  be  strictly  followed;  ^  thus  a  power  to  invest  in  bank  stocks 
or  lots  of  land  will  not  authorize  an  investment  in  the  loan  of 


>  Wood  V.  Wood,  5  Paige,  596;  Burrill  v.  Sheil,  2  Barb.  457;  Womack 
V.  Austin,  1  S.  C.  421;  Sanders  v.  Rogers,  id.  452;  Ihmsen's  App.,  43  Penn. 
St.  471. 


Moulton,  84  Me.  545.  In  States 
where  the  field  of  investments  proper 
for  trustees  is  fixed  by  statute  or  by 
rule  of  court,  the  effect  of  giving  a 
trustee  discretion  in  the  choice  of 
investments  is  to  give  him  practi- 
cally the  same  authority  that  trus- 
tees usually  have  under  the  Mas- 
sachusetts rule  without  such  an 
express  authorization.  Matter  of 
Hall,   164  N.  Y.   196. 

An  authority  to  trustees  to  invest 
in  such  "securities  as  may  in  their 
judgment  be  best"  does  not  relieve 
them  of  the  duty  of  investigating  as 
to  the  safety  of  the  particular  invest- 
ment into  which  they  put  the  funds. 
Hart's  Estate,  203  Pa.  St.  480.  It  is 
not  a  reasonable  exercise  of  their 
discretion  to  risk  the  trust  funds  in 
the  stock  of  a  new  enterprise,  Mat- 
ter of  Hall,  164  N.  Y.  196;  Mattocks 
«;.  Moulton,  84  Me.  545  ;  or  in  a 
mortgage  upon  security  which  prop- 
er investigation  would  have  shown 
to  be  insufficient  in  value,  Gilbert 
V.  Kolb,  85  Md.  627;  or  upon  secur- 
ity of  property  of  a  speculative 
value.  Rae  v.  Meek,  14  App.  Cas. 
558;  In  re  Harmon's  Estate,  61  N. 
Y.  S.  50,  45  App.  Div.  196.  Nor  can 
they  properly  expend  trust  funds  in 
the  opening  and  operation  of  mines 
in  leasehold  mining  property  which 
was  part  of  the  original  trust  prop- 
erty, Shinn's  Estate,  166  Pa.  St. 
121;  or  in  the  purchase  of  raining 
lands.    Butler  v.  Butler,  164  111.  171. 

In  jurisdictions  which  follow  the 

746 


Massachusetts  rule  as  to  invest- 
ments generally  by  trustees,  words 
in  the  trust  instrument  expressly 
authorizing  the  tinistee  to  invest 
according  to  his  discretion  do  not 
usually  change  his  duty  of  prudence 
and  watchfulness  for  the  safety  of 
both  principal  and  income.  Mat- 
tocks V.  Moulton,  84  Me.  545; 
Davis,  Appellant,  183  Mass.  499, 
502.  As  to  whether  a  discretion  in 
the  choice  of  investments  will  pass 
to  a  surviving  trustee  or  to  a  substi- 
tuted trustee,  see  infra,  §  505,note  a. 

A  trustee's  acceptance  for  him- 
self of  a  commission  from  the  corpor- 
ation in  whose  shares  he  invests 
trust  funds  is  inconsistent  with  an 
honest  exercise  of  judgment,  and 
renders  him  liable  to  account  to  the 
trust  for  the  commission  or  bribe 
and  also  to  make  good  any  loss  upon 
the  investment,  hi  re  Smith,  [1896] 
1  Ch.  71.  In  the  cited  case  an  in- 
nocent cotrustee  who  did  not  know 
of  the  commission  and  honestly  con- 
sidered the  investment  a  good  one, 
was  held  not  to  be  liable. 

A  direction  to  invest  in  such  "se- 
curities" as  the  executors  "may 
think  proper,"  has  been  held  not  to 
authorize  investment  in  shares,  not 
fully  paid  up,  of  an  unincorporated 
bank.  Murphy  v.  Doyle,  29  L.  R. 
Ir.  333;  In  re  Kavanagh,  27  L.  R. 
Ir.  495.  The  decision  in  the  cited 
cases  was  based  partly  at  least  upon 
the  finding  that  these  shares  were 
not  "securities"  within  the  meaning 


CHAP.  XV.]  INVESTMENT.  [§  460. 

the  United  States.'  A  power  to  loan  on  real  securities  does  not 
justify  a  loan  upon  railroad  bonds  secured  by  mortgage  of  the 
road ;  ^  nor  does  a  power  to  loan  upon  mortgage  authorize  an 
investment  in  railroad  mortgage  bonds.^  A  power  to  invest  in 
"good  and  sufficient  securities  in  Virginia  and  Maryland," 
authorizes  a  loan  upon  town  securities."'  A  direction  to  invest 
**  in  any  public  stocks  or  securities  bearing  an  interest,"  embraces 
a  coal  and  navigation  company,  that  being  within  the  popular 
meaning  of  the  testator.^  If  there  is  a  direction  to  invest  trust 
funds  in  real  securities  in  a  foreign  jurisdiction,  the  court  will 
allow  the  investment ;  ^  but  if  no  such  power  is  given ,  such  invest- 
ment will  not  be  allowed.^  Where  trustees  were  authorized  in 
their  discretion  to  invest  in  a  dwelling-house  for  the  daughter  of 
the  testator,  and  she  was  married  and  went  to  reside  in  a  foreign 
jurisdiction,  it  was  held,  that  they  might  invest  in  a  dwelling- 

'  Banister  v.  McKenzie,  6  Munf.  447. 

*  Mortimore  v.  Mortimore,  4  De  G.  &  J.  472;  Mant  v.  Leith,  15  Beav. 
525;  Harris  v.  Harris,  29  Beav.  107;  King  v.  Talbott,  50  Barb.  453;  40  N.  Y. 
86;  Allen  v.  Gaillard,  1  S.  C.  279;  Bromley  v.  Kelly,  39  L.  J.  Ch.  274. 

3  Ibid. 

*  McCall  V.  Peachy,  3  Munf.  288.  But  if  such  securities  are  greatly  de- 
preciated, it  would  be  a  breach  of  trust  to  invest  in  them.  Triiatees,  &c., 
V.  Clay,  2  B.  Mon.  386. 

6  Rush's  Est.,  12  Penn.  St.  375.  See  Hemphill's  App.,  18  Penn.  St. 
303. 

8  Burrill  V.  Shell,  2  Barb.  457. 

'  Rush's  App.,  12  Penn.  St.  375.  [  McCuUough  v.  McCuUough,  44  N.  J. 
Eq.  313;  Pabst  v.  Goodrich,  133  Wis.  43.  In  Massachusetts  the  court  has 
expressed  disapproval  of  such  investments,  but  has  declined  to  lay  down 
any  arbitrary  rule  against  them.  Thayer  v.  Dewey,  185  Mass.  68.  See 
also  Gouldey's  Estate,  201  Pa.  St.  491.] 

of  the  trust  instrument.    But  it  has  35),  §  3,  a  trustee  who  seeks  relief 

been  held  in  a  later  English  decision  for  loss  on  investments  which  are  in 

that  the  word  "securities"  used  in  breach  of  trust  has  the  burden  of 

the  will  of  a  general  broker  was  in-  proof   to   show   that   he   acted,   not 

tended  to  include  shares  of  stock  in  only  honestly,  but  also  reasonably, 

corporations.     In  re  Rayner,  [1904]  In  re  Stuart,  [1897]  2  Ch.  583;  In  re 

1  Ch.  176.  Turner,  [1897]  1  Ch.  536;  Re  Barker, 

Under  the  English  Judicial  Trus-  46  W.  R.  296. 
tees  Act  of  1896  (59  and  60  Vict.,  c. 

747 


§  460.]  INVESTMENT.  [CHAP.  XV. 

house  at  the  place  of  her  residence,  although  it  was  in  a  foreign 
jurisdiction.^  But  where  they  were  authorized  to  invest  in 
bonds,  debentures,  or  other  securities,  or  the  stocks  or  funds  of 
any  colony  or  foreign  country,  they  were  not  allowed  to  invest 
in  railway  bonds,  though  guaranteed  by  a  foreign  government.^ 
As  before  stated,  all  these  powers  are  strictly  construed;  as,  if 
the  trustees  are  authorized  to  loan  £3000  on  personal  securities, 
and  they  lend  £5000,  it  is  a  breach  of  trust;  ^  and  if  the  power  is 
to  loan  on  bond,  they  cannot  loan  on  a  promissory  note.^  If  the 
trustees  may  loan  the  trust  fund  to  the  husband,  with  the  con- 
sent of  the  wife,  they  cannot  allow  the  loan  to  continue  if  the 
husband  becomes  bankrupt;  and  they  will  be  guilty  of  a  breach 
of  trust,  if  they  do  not  use  due  diligence  in  calling  in  the  loan,  or 
in  collecting  such  dividends  as  may  be  coming.  An  entire 
change  of  circumstances  may  change  their  duty,  although  the 
wife  may  still  desire  that  her  husband  should  have  the  use  of  the 
money.^  Generally,  where  the  trustees  are  required  to  invest 
the  fund  in  a  particular  manner,  with  the  approbation  of  any 
person,  such  requirement  becomes  imperative  upon  the  request 
of  such  person.^  So,  if  any  formalities  are  prescribed  as  to  the 
investment,  they  must  be  strictly  complied  with;  as,  where  the 
written  consent  of  a  wife  is  a  prerequisite  to  a  loan  to  her  hus- 
band, a  verbal  consent  will  not  relieve  the  trustees  from  the 
consequences  of  a  breach  of  trust,  if  they  act  on  such  verbal 
consent.^  A  subsequent  consent  is  not  sufficient  where  a  pre- 
vious consent  was  contemplated ;  *  nor  is  it  enough  for  a  wife  to 
join  the  husband  in  a  petition  for  an  order  that  a  loan  be  made 

'  Amory  v.  Green,  13  Allen,  413. 

2  In  re  Langdale's  Settlement,  Trust,  L.  R.  10  Eq.  39. 

^  Payne  v.  Collier,  1  Ves.  Jr.  170. 

*  Greenwood  v.  Wakeford,  1  Beav.  576. 

6  Wiles  V.  Gresham,  2  Drew.  258;  24  L.  J.  Ch.  264;  Langston  v.  Olli- 
vant,  Coop.  33;  and  see  Boss  v.  Goodsall,  1  N.  C.  C.  617;  Burt  v.  Ingram, 
Lewin  on  Trusts,  339  (4th  ed.).' 

«  Cadogan  v.  Essex,  2  Dr.  227;  Mclntire  ;;.  Zanesville,  17  Ohio  St.  352. 

'  Cocker  v.  Quayle,  1  R.  &  M.  535;  Hopkins  v.  Myall,  2  R.  &  M.  86; 
Kellaway  v.  Johnson,  5  Beav.  319. 

8  Bateman  v.  Davis,  3  Madd.  98;  Adams  v.  Broke,  1  N.  C.  C.  627. 
748 


CIL\P.  XV.]  INVESTMENT.  [§  4G1. 

to  hiin.'  If  the  trustees  go  beyond  the  prescribed  limits,  neither 
good  faith  nor  care  nor  diHgence,  if  tliey  can  accompany  a 
departure  from  the  direction  of  the  instrument  of  trust,  will 
protect  them  if  a  loss  occurs.^  If  it  is  impossible  for  them  to 
invest  according  to  the  directions,  they  must  invest  in  the  se- 
curities prescribed  by  the  law  or  b}-  the  court,  or  in  the  safest 
class  of  securities.^ 

§  461.  A  direction  to  invest  in  good  freehold  security  must  be 
strictly  complied  with;^  (o)  an  authority  to  invest  in  ground 
rents  authorizes  an  investment  in  redeemable  ground  rents,  that 
being  the  kind  of  ground  rent  in  the  place  where  the  investment 
is  to  be  made;  *  a  power  to  invest  in  good  private  security  does 
not  authorize  the  trustees  to  use  the  funds  themselves.^  Where 
stock  is  settled  on  a  husband  and  wife  for  life,  with  remainder  to 
the  children,  with  a  power  to  vary  the  securities  for  greater 
interest,  the  trustees  cannot  purchase  an  annuity  for  one  of  the 
tenants  for  life.^  If,  however,  the  existing  securities  are  unsafe, 
and  it  is  proper  to  call  in  the  money  and  reinvest  it,  trustees 
may  make  a  temporary  investment  in  safe  funds  until  an  invest- 
ment can  be  advantageously  made  in  the  securities  directed  by 
the  testator.*    If  the  direction  is  to  invest  in  land  or  any  other 

1  Norris  v.  Wright,  14  Beav.  291;  Fitzgerald  v.  Pringle,  2  Moll.  534; 
Dunne  v.  Dunne,  1  S.  C.  350. 

2  Ackerman  v.  Emott,  4  Barb.  626;  Spring's  App.,  71  Penn.  St.  11; 
Ringgold  V.  Ringgold,  1  H.  &  G.  25;  Cloud  v.  Bond,  3  Myl.  &  Cr.  490. 

»  Mclntire  v.  Zanesville,  17  Ohio,  352. 
*  Wyatt  V.  Wallace,  8  Jur.  117;  1  Coop.  155,  n. 
5  Ex  parte  Huff,  2  Barr,  227. 

«  Westover  v.  Chapman,  1  Col.  C.  C.  177;  Forbes  v.  Robs,  2  Bro.  Ch. 
430;  2  Cox,  113;  ante,  §453. 

7  Fitzgerald  v.  Pringle,  2  Moll.  534. 

8  Sowerby  v.  Clayton,  3  Hare,  430;  8  Jur.  597;  Mathews  v.  Brice,  6  Beav. 
329;  Ex  parte  Chaplin,  3  Y.  &  C.  397;  Knott  v.  Cottee,  6  Beav.  77;  Brown- 
ley  V.  Kelly,  39  L.  J.  Ch.  272. 

(a)  Thus  authority  to  purchase    Worman  v.  Worman,  43  Ch.  Div. 
freeholds  does  not  include  the  pur-     296. 
chase  of  an  equity  of  redemption. 

749 


§  462.]  INVESTME^^T.  [chap.  xv. 

security,  it  will  be  implied  that  the  settlor  intended  the  invest- 
ment to  be  made  in  land  if  it  could  be  done  advantageously,  and 
the  alternative  part  of  the  direction  is  to  be  followed  only  in 
case  an  investment  cannot  be  made  in  land;  and  this  construc- 
tion will  be  followed  unless  there  is  some  other  controlling  con- 
sideration in  the  instrument.^  And  if  trustees  are  authorized  to 
lend  on  mortgage  to  three  persons,  they  cannot  lend  to  two  of 
them,  although  they  get  the  entire  interest  in  the  estate;  nor  can. 
they  lend  to  the  three  without  the  mortgage  at  the  time,  although 
they  get  the  security  in  two  years  after.  It  is  no  excuse  to  say 
that  the  delay  did  not  occasion  the  loss.  The  conclusive  answer 
is,  that  they  committed  a  breach  of  trust  in  not  obeying  the 
power,  and  they  must  make  good  the  loss.^  And  so  trustees 
cannot  let  money  on  a  mortgage  to  one  of  themselves.^  Under 
a  power  to  loan  on  mortgage  they  may  continue  existing  mort- 
gages, if  safe.* 

§  462.  A  trustee  must  invest  the  trust  funds  in  his  hands,  in 
the  manner  directed,  within  a  reasonable  time,  although  no  direc- 
tion is  given  in  the  deed  or  will  as  to  the  time  or  manner  of 
investment.  If  he  neglects  for  an  unreasonable  time  to  make 
the  investment,  he  may  be  charged  with  interest;  and  if  any 
loss  or  damage  occurs  to  the  cestui  que  trust  from  the  delay,  the 
trustee  must  make  it  up.^    What  is  a  reasonable  time  depends 

*  Earlom  v.  Saunders,  Amb.  340;  Cookson  v.  Reay,  5  Beav.  32;  Cow- 
ley V.  Hartstonge,  1  Dow,  361;  Hereford  v.  Ravenhill,  5  Beav.  51;  Fowler 
V.  Reynal,  3  Mac.  &  G.  500;  2  De  G.  &  Sm.  749. 

2  Earlom  v.  Saunders,  Amb.  340;  Cookson  v.  Reay,  5  Beav.  32;  Cow- 
ley V.  Hartstonge,  1  Dow,  361;  Hereford  v.  Ravenhill,  5  Beav.  51;  Fowler 
V.  Reynal,  3  Mac.  &  G.  500;  2  De  G.  &  Sm.  749. 

3  Stickney  v.  Sewall,  1  Myl.  &  Cr.  8; v.  Walker,  5  Russ.  7;  Fletcher 

I'.  Green,  33  Beav.  426;  Francis  v.  Francis,  5  De  G.,  M.  &  G.  108;  Crosskill 
V.  Bower,  32  Beav.  86;  De  Jamette  v.  De  Jamette,  41  Ala.  708. 

*  Angerstein  v.  Martin,  T.  &  R.  239;  Ames  v.  Parkinson,  7  Beav.  379. 

5  Lyse  V.  Kingdom,  1  Coll.  184;  Bates  v.  Scales,  12  Ves.  402;  Ryder  v. 
Bickerton,  3  Swanst.  80;  Trafford  v.  Boehm,  3  Atk.  440;  Lomax  v.  Pendle- 
ton, 3  Call,  538;  Garniss  v.  Gardner,  1  Edw.  Ch.  128;  Schieffelin  v.  Stewart, 
1  Johns.  Ch.  620;  Chase  v.  Lockerman,  11  G.  &  J.  185;  Armstrong  v.  Miller, 
6  Ham.  118;  Handly  v.  Snodgrass,  9  Leigh,  484;  Aston's  Est.,  5  Whart. 

750 


CEL\P.  XV.]  INVESTMENT.  [§  462. 

upon  circumstances.  When  the  trustees  were  directed  to  invest 
in  the  purchase  of  land  with  all  convenient  speed,  a  year  was 
held  to  be  a  reasonable  time.^  But  where  the  trustees  are  di- 
rected to  invest  in  freehold  securities,  they  will  not  be  charged 
with  interest  until  it  has  been  shown  that  they  could  have 
invested  according  to  the  direction;  for  it  is  not  always  prac- 
ticable to  procure  such  securities.^  So  a  year  from  the  testator's 
death  was  considered  a  reasonable  time  within  which  to  make 
an  investment  in  United  States  stock.^  On  the  other  hand,  the 
Supreme  Court  of  the  United  States  allowed  three  months  as  a 
reasonable  time  within  which  to  invest  capital  sums  of  a  trust 
fund  paid  in  to  a  banker,  and  charged  the  trustee  for  the  sum 
lost  by  the  failure  of  the  banker  after  that  time.^  In  other  cases, 
six  months  have  been  allowed  as  a  reasonable  time  within  which 
to  invest  trust  funds ;  and  trustees  have  been  charged  with  inter- 
est when  they  kept  the  money  uninvested  for  a  longer  time.* 
But  where  the  trustees  make  no  effort  to  invest  the  mone}',  they 
may  be  charged  with  interest  from  a  period  earlier  than  six 
months.^  WTiere  a  trustee  or  executor  is  directed  to  invest  a 
legacy  immediately  in  stock,  and  he  retains  the  sum  for  the 
period  of  one  year  or  more,  or  for  an  unreasonable  time,  and 
the  price  of  the  stock  rises,  he  will  be  ordered  to  purchase  as 

228;  In  re  Thorp,  Davies,  290;  Shipp  i;.  Hettrick,  63  N.  C.  329;  Owen  v. 
Peebles,  42  Ala.  338.  [  Stambaugh's  Estate,  135  Pa.  St.  585;  Whitecar's 
Estate,  147  Pa.  St.  368;  Hetfield  v.  Debaud,  54  N.  J.  Eq.  371;  Young's 
Estate,  97  Iowa,  218.  But  see  In  re  Wiley,  91  N.  Y.  S.  661,  98  App.  Div. 
93.] 

'  Parry  t^.  Warrington,  6  Madd.  155;  Johnson  v.  Newton,  11  Hare,  160. 

2  Wyatt  V.  Wallis,  1  Coop.  154,  n.;  8  Jur.  117. 

'  Cogswell  «;.  Cogswell,  2  Edw.  Ch.  231.  This  was  in  analogy  to  the 
payment  of  legacies,  which  may  be  done  in  one  year;  a  trustee  with  ready 
money  ought  to  invest  with  more  promptness. 

*  Barney  v.  Saunders,  16  How.  543. 

'  Dunscomb  v.  Dunscomb,  1  Johns.  Ch.  508;  Manning  v.  Manning,  id. 
527;  Merrick's  Est.,  2  Ash.  485;  Worrall's  App.,  23  Penn.  St.  44;  Armstrong 
V.  Walkup,  12  Grat.  608;  Hooper  v.  Savage,  1  Munf.  119;  Frey  v.  Frey,  2 
C.  E.  Green,  72. 

•  Ringgold  V.  Ringgold,  1  H.  &  G.  11;  Witmer's  App.,  87  Penn.  St.  120. 
Two  months  not  an  unreasonable  allowance  of  time  for  reinvestment. 

751 


§  462.]  INVESTMENT.  [CHAP.  XV. 

much  stock  as  could  have  been  purchased  at  the  time  the  fund 
ought  to  have  been  invested.^  Where  trustees  were  directed 
to  invest  in  the  funds,  and  they  paid  the  money  into  a  banker's 
with  directions  to  invest  in  bank  annuities,  which  the  banker 
neglected  to  do,  and  the  trustees  made  no  inquiry  for  five 
months,  they  were  held,  after  the  failure  of  the  banker,  for  the 
money  or  the  stock  at  the  option  of  the  cestui  que  trust?'  Trus- 
tees and  guardians  are  held  to  a  stricter  rule  in  relation  to 
investments  than  executors  acting  as  trustees,  for  trustees  and 
guardians  generally  take  an  estate  ready  to  be  invested;  and 
trustees  will  be  held  to  a  stricter  rule  in  relation  to  capital  sums, 
than  in  relation  to  current  income  from  interest,  dividends, 
rents,  and  other  smaller  sums;  thus  in  Barney  v.  Saunders,^ 
before  cited,  three  months  were  held  as  a  reasonable  time  within 
which  trustees  ought  to  have  invested  capital  sums  paid  into 
the  banker's,  and  they  were  held  responsible  for  the  loss  of 
capital  after  that  time  by  the  failure  of  the  banker,  while  they 
were  not  held  liable  to  replace  small  sums  paid  into  the  same 
banker's  from  the  rents,  interest,  and  dividends  upon  the  same 
estate.  An  executor  will  not  in  general  be  charged  with  inter- 
est for  not  investing  before  the  expiration  of  a  year  from  the 
testator's  death."*  A  year  is  a  reasonable  time  within  which  an 
executor  may  call  in  the  testator's  estate  and  pay  off  his  lia- 
bilities; and  it  is  necessary,  during  that  time,  that  the  executor 


1  Byrchall  v.  Bradford,  6  Madd.  235;  Pride  v.  Fooks,  2  Beav.  430;  Watts 
V.  Girdlestone,  6  Beav.  188;  Clough  v.  Bond,  3  Myl.  &  Cr.  496;  Robinson 
V.  Robinson,  1  De  G.,  M.  &  G.  256;  Phillipson  v.  Gatty,  7  Hare,  516.  [  See 
Re  Massingberd's  Settlement,  60  L.  T.  620;  Re  Walker,  62  L.  T.  449.] 

^  Challen  v.  Shippam,  4  Hare,  555. 

*  Barney  v.  Saunders,  16  How.  545;  Lomax  v.  Pendleton,  3  Call,  538. 

*  But  where  it  is  the  duty  of  executors  within  a  reasonable  time  to 
separate  a  legacy  from  the  estate,  and  to  invest  it  to  accumulate,  or  for  the 
support  and  maintenance  of  the  legatee,  neglect  to  do  so  makes  them 
chargeable  with  legal  interest;  and  they  will  not  be  allowed  to  limit  their 
liability  by  showing  the  rate  of  interest  received  upon  the  general  fund, 
nor  be  excused  by  the  fact  that  it  was  for  the  interest  of  the  residuary 
legatee  to  have  the  funds  kept  together.  Fowler  v.  Colt,  25  N.  J.  Eq.  202. 
[See  Dick's  Estate,  183  Pa.  St.  647.] 

752 


CHAP.  XV.J  INVESTMENT.  [§  463. 

should  keep  the  money  on  hand.  In  most  States  an  executor 
is  allowed  that  time  by  statute;  and  he  is  exemi)t  from  suit  by 
creditors  during  that  year.  After  that  time,  if  an  executor 
keeps  money  in  his  hands  without  any  apparent  reason,  except 
for  the  purpose  of  using  it,  it  becomes  a  breach  of  trust  or 
negligence;  and  the  court  may  charge  him  with  interest,  or 
with  the  principal  sum  if  lost.^  So  an  executor  will  be  charged 
with  interest  during  the  year,  if  he  receives  interest  by  loaning 
or  using  the  money .^ 

§  463.  Trustees  ought  not  to  mix  trust-money  with  other 
moneys,  and  take  a  joint  mortgage  for  the  whole,  for  this  would 
be  to  complicate  the  trust  with  the  rights  of  strangers;  (a)  nor 
should  a  mortgage  in  such  case  be  taken  in  the  name  of  a 
common  trustee,  for  that  would  be  a  delegation  of  the  rights  of 
the  trustee;^  but  where  the  trust  fund  was  verv-  small,  it  was 
held  to  be  proper  for  a  trustee  to  put  some  of  his  own  money 
with  it  in  order  to  loan  it  to  the  best  advantage  on  a  mort- 
gage.'* (6)    Trustees  must  personally  see  to  it  that  the  security 

*  Forbes  v.  Ross,  2  Cox,  115;  Flanagan  t'.  Xolan,  1  Moll.  85;  Moyle 
V.  Moyle,  2  R.  &  M.  710;  Johnson  v.  Newton,  11  Hare,  160;  Hughes  v. 
Empson,  22  Beav.  181;  Johnston  v.  Prendcrgast,  28  Beav.  480;  William- 
son V.  Williamson,  6  Paige,  300;  Dillard  v.  Tomlinson,  1  Munf.  183;  Carter 
V.  Cutting,  5  Munf.  224;  Minuse  v.  Cox,  5  Johns.  Ch.  441;  Cogswell  v. 
Cogswell,  2  Edw.  Ch.  231.  [Young's  Estate,  97  Iowa,  218;  In  re  Estate 
of  Danforth,  66  Mo.  App.  586,  590.] 

-  Lund  V.  Lund,  41  N.  H.  359;  Steams  v.  Brown,  1  Pick.  530;  Wyman 
V.  Hubbard,  13  Mass.  232;  Griswold  v.  Chandler,  5  N.  H.  499;  Mathes  v. 
Bennett,  21  N.  H.  199;  Wendell  v.  French,  19  N.  H.  205;  Chambers  r.  Kerns, 
6  Jones,  Eq.  280.  [  Westover  v.  Carman's  Estate,  49  Neb.  397;  Matter 
of  Myers,  131  N.  Y.  409;  Dorris  v.  Miller,  105  Iowa,  564.] 

*  Lewin  on  Trusts,  268. 

*  Graves's  App.,  50  Penn.  St.  189. 

(a)  Trustees  should  not  ordina-  (b)  But  he  should  take  the  mort- 

rily  mingle  funds  of  different  trusts  gage  as  trustee,  not  in  liis  individual 

in  one  investment,  even  though  the  name.     Re  Hodges'  Estate,  66  Vt. 

different  trusts  were  established  by  70.     See  Dunn  v.  Dunn,  137  N.  C. 

the  same  will.     McCullough  v.  Mc-  533. 
CuUough,  44  N.  J.  Eq.  313,  316. 

VOL.  I.  —  48  753 


§  403.]  INVESTMENT.  [CHAP.  XV. 

is  forthcoming  upon  parting  with  the  money ;  ^  as,  where  they 
allowed  their  solicitors  to  receive  the  money  upon  representa- 
tions that  the  mortgage  was  ready,  and  there  was  no  mortgage, 
and  the  solicitors  misapplied  the  money,  the  trustees  were  held 
to  make  up  the  loss.^  When  the  money  is  paid  in  to  a  banker  or 
broker  for  investment,  the  trustees  must  see  that  the  invest- 
ment is  made  at  once,  and  the  securities  taken  in  the  proper 
form,  or  they  will  be  liable  for  any  loss  that  may  happen;  ^  or 
where  money  is  suffered  to  remain  in  the  hands  of  third  persons 
unnecessarily,  and  a  loss  happens,  the  trustees  must  make  it 
up.^  So,  if  the  trustee  pays  the  money  into  a  bank  in  his  own 
name,  and  not  in  the  name  of  the  trust,  he  will  be  responsible 
for  the  money  in  case  of  the  failure  of  the  bank.^  But  as  between 
the  trustee,  his  representatives,  and  the  cestui  que  trust  the  cestui 
que  trust  may  follow  the  money  into  the  hands  of  the  banker. 
If  it  is  a  simple  account,  not  complicated  by  mixture  with  de- 
posits of  the  trustee's  own  moneys  and  withdrawals,  it  is  a 
simple  debt  which  the  cestui  que  trust  may  claim  to  be  held  and 
applied  to  the  trust;  but  the  deposit  of  the  trustee's  own  money, 
and  the  withdrawal  of  part  by  checks,  will  not  defeat  the  right 
of  the  cestui  que  tru^t.  (a)  If  anything  of  the  trust  fund  remains 
in  the  hands  of  the  banker  under  this  rule,  it  will  be  applied  to 

1  Cogbill  V.  Boyd,  77  Va.  450.    [  Key  v.  Hughes's  Ex'rs,  32  W.  Va.  184.] 

2  Rowland  v.  Witherden,  3  Mac.  &  G.  568;  Hanbury  v.  Karkland,  3 
Sim.  265;  Broadhurst  v.  Balguy,  1  N.  &  C.  Ch.  16;  Ghost  v.  Waller,  9 
Beav.  497;  13  Beav.  336. 

'  Challen  v.  Shippam,  4  Hare,  555;  Byrne  j'.  Norcott,  13  Beav.  336. 
[  Key  V.  Hughes's  Ex'rs,  32  W.  Va.  184.] 

*  Barney  v.  Saunders,  16  How.  543;  Anon.  Lofft,  492;  Fletcher  v.  Walker, 
3  Madd.  73;  Moyle  v.  Moyle,  2  R.  &  M.  701;  Macdonnell  ^.Harding,  7  Sim. 
178;  Massey  v.  Banner,  4  Madd.  419;  1  J.  &  W.  241;  Lowry  v.  Fulton,  9 
Sim.  115;  Mathews  v.  Brice,  6  Beav.  239;  Munch  v.  Cockerell,  9  Sim.  115; 
Johnson  v.  Newton,  11  Hare,  160. 

^  Ibid.;  Wren  v.  Kirton,  11  Ves.  377;  Pennell  v.  Deffell,  4  De  G.,  M. 
&  G.  392;  Ex  parte  Hilliard,  1  Ves.  Jr.  89;  Rocke  v.  Hart,  11  Ves.  61;  Free- 
man V.  Fairlee,  3  Mer.  39;  Jenkins  v.  Walter,  8  G.  &  J.  218;  Luken's  App.,  7 
WaUs  &  S.  48;  Stanley's  App.,  8  Penn.  St.  131;  Royer's  App.,  11  id.  36. 
[  Coffin  V.  Bramlitt,  42  Miss.  194.     See  supra,  §  443.] 

(a)  See  infra,  §  828,  note. 
754 


CHAP.  XV.]  INVESTMENT.  (§  464. 

the  purposes  of  the  trust.'  This  is  a  rule  for  the  protection  of 
the  cestui  que  trust  in  case  of  the  failure  or  bankruptcy  of  the 
trustee.  But  it  does  not  affect  the  general  rule  before  stated, 
that  where  a  trustee  deposits  the  trust-money  in  his  own  name, 
or  mixes  the  money  with  his  own,  he  must  pay  interest  for  it, 
and  be  responsible  for  the  principal,  in  case  of  the  failure  of  the 
banker  or  of  any  other  loss.^ 

§  464.  Trustees  cannot  use  trust-moneys  in  their  business, 
nor  embark  i  tin  any  trade  or  speculation ;  ^  nor  can  they  disguise 
the  employment  of  the  money  in  their  business,  under  the  pre- 
tence of  a  loan  to  one  of  themselves,''  nor  to  a  partnership  of 
which  they  are  members;^  nor  can  the  money  be  loaned  on 
security  to  be  reloaned  back  to  the  trustee,  or  by  the  trustee  at 

1  Pennell  v.  DeffeU,  4  De  G.,  M.  &  G.  392;  Frith  v.  Cortland,  2  Hem. 
&  M.  417;  34  L.  J.  Ch.  301;  Kip  v.  Bank  of  N.  Y.  10  Johns.  65;  Kennedy 
V.  Strong,  id.  289;  School,  (fee,  v.  Kirwin,  25  111.  73;  McAllister  i-.  Common- 
wealth, 30  Penn.  St.  536;  Morrison  ;;.  Kinstra,  55  Miss.  71. 

2  Mumford  v.  Murray,  6  Johns.  Ch.  1;  Kellett  v.  Rathbun,  4  Paige, 
102;  Jacot  v.  Emmett,  11  Paige,  142;  De  Peyster  v.  Clarkson,  2  Wend.  77; 
Gamiss  v.  Gardner,  1  Edw.  Ch.  128;  Spear  v.  Tinkham,  2  Barb.  Ch.  211; 
Merrick's  Est.,  2  Ash.  485;  Dyott's  Est.,  2  Watts  &  S.  565;  BevcHeys  v. 
Miller,  6  Munf.  99;  Diffenderffer  v.  Winder,  3  G.  &  J.  341;  Peyton  v.  Smith, 
2  Dev.  &  B.  Eq.  325;  Jameson  v.  Shelly,  2  Humph.  198;  Kerr  v.  Laird,  27 
Miss.  544;  In  re  Thorp,  Davies,  290. 

3  Tebbs  V.  Carpenter,  1  Madd.  304;  Lee  v.  Lee,  2  Vern.  548;  Adye  v. 
Feuilleteau,  1  Cox,  24;  Piety  t-.  Stace,  4  Vcs.  622;  Docker  v.  Somes,  2  Myl. 
&  K.  655;  Palmer  v.  Mitchel,  id.  672,  n.;  Miller  v.  Beverleys,  4  Hem.  &  M. 
415;  In  re  Thorp,  Davies,  290;  Manning  v.  Manning,  1  Johns.  Ch.  527; 
Brown  v.  Ricketts,  4  Johns.  Ch.  303.  At  one  time  it  was  held  that  execu- 
tors might  employ  money  in  their  trade,  especially  if  they  were  solvent, 
and  if  the  assets  were  generally,  and  not  specifically,  bequeathed.  Gros- 
vesnor  v.  Cartwright,  2  Ch.  Cas.  212;  Linch  v.  Cappey,  id.  35;  Brown  r. 
Litton,  1  P.  Wms.  140;  Ratcliffe  v.  Graves,  2  Ch.  Cas.  152;  Bromfield  v. 
Wytherly,  Pr.  Ch.  505;  Adams  i-.  Gale,  2  Atk.  106;  Child  v.  Gibson,  id. 
603;  but  Mr.  Lewin  says  that  Lord  North  overruled  above  forty  cases, 
and  a  twenty  years'  practice,  in  Ratcliffe  i'.  Graves,  1  Vern.  196;  Xewton  r. 
Bennett,  1  Bro.  Ch.  361;  Adye  t'.  Feuilleteau,  1  Cox,  25;  Lewin  on  Trusts, 
255,  276.    [  St.  Paul  Trust  Co.  v.  Kittson,  62  Minn.  408.  See  supra,  §  429,  n.] 

*  Townend  v.  Townend,  1  Gif.  201. 

*  Kyle  V.  Barnett,  17  Ala.  306.     [  Matter  of  Myers,  131  N.  Y.  409.J 

755 


§  465.]  INVESTMENT.  [CHAP.  XV. 

a  profit.^  If  a  trustee  makes  such  use  of  the  money,  he  will  be 
responsible  for  all  loss,  and  he  may  be  compelled  to  pay  the 
highest  rate  of  interest;  (a)  or  the  cestui  que  trust  may  follow 
the  money,  and  insist  upon  all  the  profits  made  by  such  use;  and 
if  the  trustee  is  a  trader  or  business  man,  he  will  be  presumed  to 
use  and  employ  the  money  in  his  business  if  he  deposits  it 
in  bank  in  his  own  name;  for  such  business  men  must  generally 
keep  some  money  in  bank  for  the  purposes  of  their  credit,  and 
such  trust-money  answers  the  purpose  as  if  it  was  their  own.^ 
If  the  trust  fund  is  employed  in  business,  the  whole  increase 
will  belong  to  the  fund;  but  if  the  trustee  is  also  one  of  the 
beneficiaries,  he  will  be  entitled  to  his  share,  and  it  will  go  to 
his  representatives  upon  his  death. ^  Where  an  executor  bought 
stock  in  his  own  name  with  the  trust  fund,  and  the  stock  rose 
in  price,  it  was  held  that  he  was  liable  for  the  market-price  of 
the  stock  at  the  time  of  the  decree.  If  the  investment  is  profit- 
able, the  cestuis  que  trust  are  entitled  to  the  profits;  if  disastrous, 
they  are  entitled  to  interest  on  the  money ;  and  if  the  investment 
has  been  made  with  funds  of  the  estate  mingled  with  funds  of 
the  executor  in  various  stocks,  and  the  funds  of  the  estate  can- 
not be  traced  and  identified  in  any  particular  stocks,  the  ces- 
tuis que  trust  are  entitled  to  select  the  most  profitable  stocks.^ 

§  465.  There  is  said  to  be  a  distinction  between  an  original 
investment  improperly  made  by  trustees,  and  an  investment 

1  Ratcliffe  v.  Graves,  2  Ch.  Gas.  152;   1  Vem.  196. 

2  Treves  v.  Townshend,  1  Bro.  Gh.  284;  Moons  v.  De  Bernales,  1  Russ. 
301;  In  re  Hilliard,  1  Ves.  Jr.  90;  Sutton  v.  Sharp,  1  Russ.  146;  Rocke  v. 
Hart,  11  Ves.  61;  Brown  v.  Southhouse,  3  Bro.  Gh.  107;  Lamb's  App.,  58 
Penn.  St.  142.     [  See  also  supra,  §  429,  note.] 

3  Hook  V.  Dyer,  47  Mo.  24. 

*  Norris's  App.,  71  Penn.  St.  106.  [  See  In  re  Oatway,  [1903]  2  Gh. 
356;  Gity  of  Lincoln  v.  Morrison,  64  Neb.  822;  Putnam  v.  Lincoln  Safe  Dep. 
Go.,  104  N.  Y.  S.  4;  118  App.  Div.  468;  Bromley  v.  Gleveland,  etc.,  R.  Go., 
103  Wis.  562.  As  to  what  is  suflBcient  identification  of  the  trust  funds,  see 
infra,  §  828,  and  note  (a).] 

(a)  As  to  a  trustee's  use  of  trust  suiting  liability,  see  supra,  §  429, 
funds  in  his  own  business  and  his  re-    note. 

756 


CHAP.  XV.]  INVESTMENT.  (§•  465^ 

made  by  tlie  testator  himself, and  simply  continued  by  a  trustee;' 
but  it  is  a  distinction  that  cannot  be  safely  acted  u})on.  If  a 
testator  gives  any  directions  in  his  will  to  continue  his  invest- 
ments already  made,  trustees  must  of  course  follow  such  direc- 
tions; and  if  they  follow  them  in  good  faith,  they  will  not  be 
liable  for  any  losses,  unless  they  are  negligent  in  failing  to  change 
an  investment,  when  it  ought  to  be  changed  to  save  it;  (a)  for 
it  cannot  be  supposed  that  the  direction  of  a  testator  to  continue 
a  certain  investment  reUeves  the  trustees  from  the  ordinary 
duty  of  watching  such  investment,  and  of  calling  it  in  when 
there  is  imminent  danger  of  its  loss  by  a  change  of  circum- 
stances. If  no  directions  are  given  in  a  will  as  to  the  conversion 
and  investment  of  the  trust  property,  trustees  to  be  safe  should 
take  care  to  invest  the  property  in  the  securities  pointed  out 
by  the  law.  It  is  true  that  a  testator  during  his  life  may  deal 
with  his  property  according  to  his  pleasure,  and  investments 
made  by  him  are  some  evidence  that  he  had  confidence  in 
that  class  of  investments;  but,  in  the  absence  of  directions 
in  the  will,  it  is  more  reasonable  to  suppose  that  a  testator 
intended  that  his  trustees  should  act  according  to  law.     Con- 

1  Powell  V.  Evans,  5  Ves.  841;  Clough  v.  Bond,  3  Myl.  &  Cr.  496;  Har- 
vard Col.  V.  Amory,  9  Pick.  44C;  Thompson  v.  Brown,  4  Johns.  Ch.  628; 
Knight  V.  Plymouth,  3  Atk.  480;  1  Dick.  120;  Rowth  v.  Howell,  3  Ves.  565; 
Wilkinson  v.  Staflford,  1  Ves.  Jr.  41;  Vez  v.  Emery,  5  Ves.  144;  Barton's 
Est.,  1  Pars.  Eq.  24;  Murray  v.  Feinour,  2  Md.  Ch.  418;  Brown  v.  Campbell, 
Hopkins,  233;  Smith  v.  Smith,  4  Johns.  Ch.  283;  See  11  Amer.  Law  Reg. 
208  (n.  s.),  April,  1874;  Pierce  v.  Bowker,  130  Mass.  262,  where  a  trustee 
in  good  faith  continued  an  investment  in  railroad  stock  originally  made 
by  his  testator,  until,  gradually  falling  in  value,  it  became  worthless. 

(a)  Where  a  testator  ha.s  author-  WTiere  a  testator  by  express  words 
ized  his  executors  to  continue  his  authorized,  but  did  not  require,  three 
own  investments,  it  has  been  held  trustees  to  continue  certain  invest- 
that  they  have  no  authority  to  carry  ments  which  they  would  not,  under 
on  margin  purchases  of  stocks  which  the  law  or  under  any  direction  in  the 
the  testator  had  made  before  his  will,  have  had  authority  to  make,  it 
death,  since  such  a  venture  is  not  was  held  that  any  one  of  the  three 
an  investment,  but  a  speculation,  could  bring  about  a  sale  of  the  in- 
Matter  of  Hirsch,  116  N.  Y.  App.  vestments  against  the  wishes  of  the 
Div.  367  (affirmed  188  N.  Y.  584).  other  two.     Re  Pcoth,  74  L.  T.  50. 

757 


§  465.]  INVESTMENT.  [CHAP.  XV. 

sequently,  in  States  where  the  investments  which  trustees  may 
make  are  pointed  out  by  law,  the  fact  that  the  testator  has 
invested  his  property  in  certain  stocks,  or  loaned  it  on  personal 
security,  will  not  authorize  trustees  to  continue  such  invest- 
ments beyond  a  reasonable  time  for  conversion  and  investment 
in  regular  securities.^  But  in  States  where  there  are  no  fixed 
funds  or  securities  in  which  trustees  shall  invest,  the  fact  that  a 
testator  has  invested  his  property  in  particular  stocks,  shares 
of  corporations,  mortgages,  or  other  securities,  thus  indicating 
his  confidence  in  such  investments,  will  go  far  to  justify  the 
trustees  in  continuing  them.^  So  trustees,  in  the  usual  course  of 
dealing,  may  take  notes  on  short  time  for  small  sums  of  rent  due 
their  estate,  that  having  been  the  usual  course  of  dealing  with 
the  tenants  by  the  testator.^  Taking  all  the  cases  together,  it 
would  appear  to  be  a  settled  principle  that  trustees  are  not 
justified,  in  the  absence  of  express  or  implied  directions  in  the 
will,  in  continuing  an  investment  permanently,  made  by  the 
testator,  which  they  would  not  be  justified  themselves  in  mak- 
ing. (<x)     The  principle  probably  has  this  qualification,  that  if  a 


1  Hemphill's  App.,  18  Penn.  St.  303;  Pray's  App.,  34  id.  100,  over- 
rules the  case  of  Barton's  Est.,  1  Pars.  Eq.  24;  Kimball  v.  Reading,  11 
Foster,  352.     [  Babbitt  v.  Fidelity  Tr.  Co.,  72  N.  J.  Eq.  745.] 

2  Harvard  Coll.  v.  Amory,  9  Pick.  446.  [  Peckham  v.  Newton,  15  R.  I. 
321.] 

'  Smith  V.  Smith,  4  Johna  Ch.  283. 

(a)  In  Connecticut,  trustees  are  103;  Babbitt  v.  Fidehty  Trust  Co., 
authorized  by  statute  to  continue  in-  72  N.  J.  Eq.  745. 
vestments  made  by  the  creator  of  The  rule  that  a  trustee  must  con- 
the  trust,  unless  otherwise  ordered  vert  and  reinvest  the  proceeds  of 
by  the  court,  so  long  as  in  the  exer-  investments  which  are  not  in  the 
cise  of  reasonable  prudence  they  class  authorized  by  law  does  not 
deem  a  change  unnecessary,  even  apply  to  a  trust  created  by  a  volun- 
when  the  investment  is  not  within  tary  declaration  of  trust  by  way  of 
the  class  authorized  by  law  for  tru.s-  gift,  the  donor  making  himself  trus- 
tees. Conn.  Gen.  St.  (l902),  §  255;  tee.  Thus  where  in  New  York  an 
Beardsley  v.  Bridgeport,  etc.,  Asy-  owner  of  shares  of  stock  in  a  national 
lum,  76  Conn.  560.  For  a  similar  bank  made  a  voluntary  declaration 
provision  see  N.  J.  Laws  of  1899,  ch.  of  trust   without   consideration   for 

758 


CHAP.  XV.]  INVESTMENT.  [§  466. 

trustee  continue  such  investment  in  good  faith,  and  a  loss  hap- 
pens, he  would  be  held  to  replace  the  original  sum  only,  without 
interest.^ 

§  466.  Except  upon  emergency,  to  protect  the  fund  from 
depreciation,  or  to  convert  wasting  securities  to  those  of  a  per- 
manent character,  or  investments  in  securities  that  are  not 
authorized  by  law  into  such  as  are  allowed,  trustees  may  not 
sell  or  vary  specific  securities  given  in  trust,  nor  securities  left 
by  a  testator  in  which  he  has  himself  invested  the  funds.^  (a) 

»  Lowson  V.  Copeland,  2  Bro.  Ch.  157;  Tebbs  v.  Carpenter,  1  Madd.  298. 

2  Angell  V.  Dawson,  2  Y.  &  C.  316;  Flyer  v.  Flyer,  3  Beav.  550;  Ne- 
ville V.  Fortescue,  16  Sim.  333;  Boys  v.  Boys,  28  Beav.  436;  Murray  v. 
Feinour,  2  Md.  Ch.  418;  Ward  v.  Kitchen.  30  N.  J.  Eq.  31;  Crackelt  v. 
Bethune,  1  Jac.  &  W.  566;  Witter  v.  Witter,  3  P.  Wms.  100;  Hammond 
V.  Hammond,  2  Bland,  306.  But  where  the  trustee  has  performed,  with- 
out authority,  an  act  which,  at  the  time  it  was  done,  was  obviously  for 
the  benefit  of  all  concerned,  and  which  upon  proper  application  would  have 
been  ordered,  his  act  will  be  ratified,  and  held  of  the  same  vaUdity  as  if 
previously  ordered.  Gray  v.  Ljmch,  8  Gill,  405.  Where  trustees  under  a 
will  exceeded  their  power  by  buying  real  estate  with  trust  funds,  and  con- 
tinued to  buy  and  sell,  at  first  with  a  profit,  but  ultimately  with  a  loss  of 
a  large  part  of  the  fund,  no  lack  of  good  faith  being  found,  they  were  held 
liable  for  the  amount  of  the  trust  fund  before  the  first  purchase  of  real 
estate  only,  with  interest  from  the  time  the  beneficiary  should  have  re- 
ceived the  income.  Baker  v.  Disbrow,  3  Redf.  (N.  Y.)  .348.  [  See  Massey 
V.  Stout,  4  Del.  Ch.  274,  288;   Emery  v.  Batchelder,  78  Me.  233.] 

the  benefit  of  his  children,  and  the  no  authority  to  change  investments, 

bank  afterwards  became  insolvent,  it  is  part  of  his  duty  to  apply  to 

it  was  held  that  the  trustee  was  not  court  for  authority  when  the  safely 

personally  liable  to  make  good  the  of  the  trust  fund   requires  that  a 

loss  suffered  by  the  cestuis.     Fowler  change  be  made.    Johns  v.  Herbert, 

V.  Gowing,  152  Fed.  SOI .  2  App.  D.  C.  485.    See  Stone  v.  Clay, 

(a)    Trustees  usually    have    im-  103  Ky.  314. 

plied,  if  not  express,   authority  to  When  after  a  proper  investment 

change  trust  investments  whenever  on  the  security  of  a  mortgage,  the 

the  safety  of  the  trust  fund  or  good  real  estate  falls  in  value  below  what 

management    requires.        Citizens'  is  regarded  as  safe  for  trust  invests 

Nat.  Bank  r.  Jefferson,  88  Ky.  651;  ments,    the    course    of    the    trustee 

Hays    V.   Applegato,    101    Ky.    22.  must  be  guided  by  circumstances. 

But  sec  Branch  v.  Do  Wolf.  28  R.I.  If  the  mortgage  is  overdue,  there  is 

542.     And  even  when  a  trustee  has  no  absolute  rule  that  he  must  fore- 

759 


^  406.]  .INYESTMENT.  [CHAP.  XV. 

Nor  can  they  change  the  character  of  the  investments  from 
realty  to  personalty,  or  vice  versa,  without  special  authority.^ 
And  if,  without  authority,  trustees  change  investments  properly 
made  for  others  improper  or  unauthorized  by  law,  they  may  be 
required  to  replace  the  securities  sold,  and  also  to  invest  any 
profits  which  may  have  accrued  in  the  same  securities ;  ^  or  the 
cestui  que  tru^t  may  elect  to  take  the  money  with  interest  upon 
it.^  And  even  if  trustees  have  express  power  to  vary  the  secur- 
ities, they  will  not  be  allowed  to  do  so  capriciously,  or  without 
some  apparent  object;  ^  and  they  ought  not  to  sell  out  an  invest- 
ment without  having  in  view  an  immediate  reinvestment :  if  they 
do  so,  they  may  be  held  to  pay  the  loss  that  may  occur.     If  an 

»  Post,  §  602  et  seq.;  Quick  v.  Fisher,  9  N.  J.  Eq.  802. 

*  Powlett  V.  Herbert,  1  Ves.  Jr.  297;  Evans  v.  Inglehart,  6  GiD  &  J.  192. 
In  such  cases  of  unauthorized  varying  the  securities  the  trustee  takes  upon 
himself  the  burden  of  proving  entire  bona  fides,  and  that  there  was  rea- 
sonable ground  to  believe  that  the  fund  would  be  benefited;  and  if  this 
can  be  shown  the  courts  will  sustain  his  action.  Washington  v.  Emery,  4 
Jones  (N.  C),  32;  Comwise  v.  Bourgum,  2  Ga.  Dec.  15. 

»  Forrest  v.  Elwes,  4  Ves.  497;  Fowler  v.  Reynall,  2  De  G.  &  Sm.  749; 
3  Mac.  &  G.  500. 

"  Brice  V.  Stokes,  11  Ves.  324;  De  Manneville  v.  Crompton,  1  V.  &  B. 
359;  Fowler  v.  Reynall,  3  Mac.  &  G.  500. 

6  Hanbury  v.  Kirkland,  3  Sim.  265;  Broadhurst  v.  Balguy,  1  Y.  &  C. 
Ch.  16;  Watts  V.  Girdlestone,  6  Beav.  190. 

close   or    press   the   personal  claim  produced  if  it  bad  been  retained. 

against  the  mortgagor.     The  ques-  Re  Walker,  62  L.  T.  449;  Re  Mas- 

tion  is  a  practical  one  for  the  trustee  singberd's  Settlement,  60  L.  T.  620. 
to  determine  under  all  the  circum-  Thus  if  the  securities  in  which  the 

stances  with  view  to  what  seems  funds  were  originally  invested  have 

best  for  the  interest  of  the  cestuis.  risen  in  value  since  the  change  the 

In  re  Chapman,  [1896]  2  Ch.  763;  trustee  may  be  required  to  make  up 

In  re  Medland,  41  Ch.  Div.  476.  this  difference  as  well  as  any  loss  of 

Where  a  trustee  sells  a  proper  in-  funds  put  into  the  new  investment, 

vestment  for  the  -purpose  of  putting  or  if  the  former  have  fallen  in  value 

the  proceeds  into  an  unauthorized  the  cesimmayelect  to  take  the  actual 

investment,  the  cestui  has  the  option  proceeds.      And   this   is  true   even 

of  requiring  him  to  replace  the  pro-  when  the  trustee  had  authority  to 

^eeds  or  of  requiring  him  to  replace  sell  for  a  proper  purpose.    Re  ^  alk- 

fthe    original    investment,    together  er,  62  L.  T.  449. 
•with  the  income  which  it  would  have 

760 


CHAP.  XV  ]  INVESTMENT.  [§  467. 

investment  in  a  particular  fund  or  stock  is  directed  by  a  testa- 
tor, it  cannot  be  varied  except  by  the  consent  of  all  the  parties 
interested;  and  if  there  are  parties  not  sui  juris,  or  not  in  being, 
the  court  itself  will  not  order  a  change.'  Where  an  investment 
was  not  to  be  varied  without  the  consent  of  the  testator's  wife, 
and  she  waived  the  provisions  of  the  will,  her  consent  was  still 
held  necessary.^  In  those  States  where  there  are  no  stocks, 
funds,  or  securities,  prescribed  by  law,  or  by»the  order  of  court, 
in  which  trustees  must  invest  in  order  to  be  safe,  and  invest- 
ments are  once  made  by  trustees  in  safe  and  proper  securities, 
or  where  investments  are  left  by  the  testator  in  such  securities, 
the  courts  will  be  very  adver.se  to  a  change,  and  will  not  allow 
one,  except  for  some  very  controlling  motive.  The  reason  is, 
that  where  there  is  no  rule  governing  investments  by  trustees, 
except  that  they  shall  act  in  good  faith  and  upon  a  sound  dis- 
cretion, courts  are  very  averse  to  change  proper  investments 
once  made,  and  select  others  by  so  very  indefinite  a  rule.^  (a) 

§  467.  If  trustees  make  an  improper  investment  with  the 
knowledge,  assent,  and  acquiescence,  or  at  the  request  of  the 
cestui  qv£  trust,  they  cannot  be  held  to  make  good  the  loss,  if 
one  happens;  *  but  the  cestuis  que  trust,  to  be  affected  by  such 

^  Wood  V.  Wood,  5  Paige,  596;  Trans.  University  v.  Clay,  2  B.  Men. 
386;  Contee  v.  Dawson,  2  Bland,  264;  Deaderick  v.  Cantrell,  10  Yerg. 
263;  Burrill  v.  Sheil,  2  Barb.  457;  Personeau  v.  Personeau,  1  Des.  521; 
Lamb's  App.,  58  Penn.  St.  142. 

»  Plympton  v.  Plympton,  6  Allen,  178. 

'  Murray  v.  Feinour,  4  Md.  Ch.  418. 

*  Booth  V.  Booth,  1  Beav.  125;  Langford  t^.  Gascoync,  11  Ves.  333; 
Nail  V.  Punter,  5  Sim.  355;  Farrar  v.  Barraclough,  2  Sm.  &  G.  231;  Broad- 
hurst  V.  Balguy,  1  Y.  &  C.  Ch.  16;  Raby  v.  Ridehalgh,  7  De  G.,  M.  &  G. 
104;  Walker  v.  Symonds,  3  Swanst.  64;  Munch  v.  Cockerell,  5  Myl.  &  Cr. 
178;  Poole  v.  Munday,  103  Mass.  174;  Brice  v.  Stokes,  11  Ves.  319.    [  Mat- 

(a)  But  the  matter  of  changing  bona  fide   and   with   ordinary   pru- 

investments    has   been    said    to   be  dence."    Massoy  r.  Stout,  4  Del.  Ch. 

"one  of  those  discretionary  powers  274,  288;  Emery  v.  Batchelder,  78 

that  the  court  will  not  control,  fur-  Me.  233. 
ther  than  to  see  that   it   exercised 

761 


§  467.]  INVESTMENT.  [CHAP.  XV. 

consent  or  acquiescence,  must  be  sui  juris,  and  capable  of  acting 
for  themselves;  ^  if,  therefore,  they  are  married  women,  or 
minor  children,  or  other  persons  incapacitated,  or  under  dis- 
ability, they  cannot  be  bound  by  any  alleged  acquiescence,  nor 
by  their  urgent  requests,^  although  a  married  woman  may  acqui- 
esce in  the  investment  of  trust  property,  given  to  her  sole  and 
separate  use,  in  such  manner  that  she  cannot  afterwards  com- 
plain of  the  investment  as  improper.^  But  in  order  that  the 
cestuis  que  trust  may  be  bound  by  their  acquiescence  in  an 
improper  investment,  there  must  be,  on  their  part,  full  knowl- 
edge of  all  the  facts  and  circumstances;  "*  and  the  trustee  must 
be  free  from  all  suspicion  of  misrepresentation  or  concealment.^ 
The  remainder-man  cannot  acquiesce  in  an  investment,  until 
his  interest  falls  into  possession,  so  as  to  be  bound .^  If  the 
improper  investment  has  been  made,  at  the  request  of  the 
tenant  for  life,  and  such  tenant  has  received  an  increased  income 
by  reason  of  the  improper  investment,  such  increased  income 
can  be  recovered  back  from  the  tenant  for  life.^    But  if  the 

ter  of  Hall,  164  N.  Y.  196;  Phillips  v.  Burton,  52  S.  W.  1064  (Ky.  1899); 
In  re  Somerset,  [1894]  1  Ch.  231.     See  infra,  §§  849-851,  as  to  consent, 
acquiescence,  or  ratification  of  cestui  in  case  of  a  breach  of  trust.] 
1  Buckeredge  v.  Glasse,  1  Cr.  &  Phil.  135. 

*  Walker  v.  Symonds,  3  Swanst.  69;  Hopkins  v.  Myall,  2  R.  &  M.  86; 
Ryder  v.  Bickerton,  3  Swanst.  80,  n.;  March  v.  Russell,  3  Myl.  &  Cr.  31; 
Nail  V.  Punter,  5  Sim.  556;  Kellaway  v.  Johnson,  5  Beav.  319;  Bateman 
V.  Davis,  3  Madd.  98;  Cocker  v.  Quayle,  1  R.  &  M.  535;  Murray  v.  Feinour, 
2  Md.  Ch.  422;  Barton's  Est.,  1  Pars.  Eq.  47;  Kent  v.  Plumb,  57  Ga.  207. 

»  Mant  V.  Leith,  15  Beav.  524;  Brewer  v.  Swirles,  2  Sm.  &  G.  219;  Sher- 
man V.  Parish,  53  N.  Y.  483.  But  she  may  maintain  a  suit  to  correct  the 
irregularity,  although  she  cannot  claim  anything  as  for  a  breach  of  the 
trust.     Ibid. 

*  Munch  V.  Cockerell,  5  Myl.  &  Cr.  178;  Montford  v.  Cadogan,  17  Ves. 
489.  And  they  must  be  apprised  of  the  effect  of  their  legal  rights.  Adair 
V.  Brimmer,  74  N.  Y.  539.    [  White  i;.  Sherman,  168  111.  589.] 

*  Burrows  v.  Walls,  5  De  G.,  M.  &  G.  233;  Underwood  v.  Stevens,  1 
Mer.  712;  Walker  t;.  Symonds,  3  Swanst.  1.  [Nichols,  Appellant,  157 
Mass.  20;  McKim  v.  Glover,  161  Mass.  418.] 

*  Bennett  r.  CoUey,  5  Sim.  181;  2  Myl.  &  K.  225;  Brown  v.  Cross,  14 
Beav.  105. 

^  Dimes  v.  Scott,  4  Russ.  195;  Mehrtens  t;.  Andrews,  3  Beav.  72;  Howe 

762 


CHAP.  XV.]  INTEREST.  [§  408. 

tenant  for  life  protested  against  the  illegal  investment,  and 
desired  the  trustees  to  make  a  proper  investment,  the  increased 
income  from  the  illegal  investment  cannot  be  recovered  back.^ 
In  all  cases  the  assent  to  an  illegal  investment  must  be  so  formal 
that  the  trustees  are  justified  in  acting  upon  it.  If  it  is  a  mere 
expression  that  a  certain  investment  would  be  safe,  without 
any  intention  that  the  trustees  should  act  upon  it,  the  cestui 
que  trust  will  not  be  bound. ^  (a)  So  an  assent  to  a  particular 
investment  cannot  justify  a  subsequent  mismanagement  of  the 
investment.^  And  acquiescence  by  the  cestui  qv£  trust  will  not 
be  presumed  from  mere  lapse  of  time,  if  he  has  done  nothing 
to  acknowledge  it,  or  has  received  no  benefit.^  Any  party 
whose  rights  are  endangered  by  an  improper  or  unauthorized 
investment  may  apply  to  the  court  for  redress ;  °  but  if  the 
investment  was  made  by  mistake,  or  has  been  corrected,  the 
trustees  will  not  be  removed,  or  they  will  not  be  deprived  of 
the  funds.* 

§  468.  It  is  difficult  to  lay  down  any  general  rule  that  is 
equitable  and  applicable  to  all  cases,  as  to  the  interest  that 
trustees  shall  pay  upon  trust  funds  in  their  hands.  In  England, 
if  trustees  suffer  money  to  remain  in  their  own  hands,  or  in  the 
hands  of  third  persons,  or  in  bank  for  an  unreasonable  time,  in 
addition  to  their  liability  for  its  loss  during  such  delay,  they 

V.  Dartmouth,  7  Ves.  150;  Mills  v.  Mills,  7  Sim.  101;  Pickering  t'.  Pickering, 
4  Myl.  &  Cr.  289;  Holland  t'.  Hughes,  16  Ves.  114;  Hood  v.  Clapham,  19 
Beav.  90;  M'Gachen  v.  Dew,  15  Beav.  84;  Raby  v.  Ridehalgh,  7  De  G., 
M.  &  G.  104;  Band  v.  Tardell,  id.  628;  Stewart  v.  Sanderson,  L.  R.  10  Eq. 
26.  [  See  also  Fletcher  v.  CoUis,  [1905]  2  Ch.  24;  Chillingworth  v.  Cham- 
bers, [1896]  1  Ch.  685.] 

'  Bate  V.  Hooper,  5  De  G.,  M.  &  G.  358;  and  see  Turquand  v.  Marshall, 
L.  R.  6  Eq.  112;  Hood  v.  Clapham,  19  Beav.  90. 

»  Nyce's  App.,  5  Watts  &  S.  254. 

^  Lockhart  v.  Reilly,  39  Eng.  L.  &  Eq.  135. 

*  Phillipson  t;,  Gatty,  7  Hare,  516. 

»  Bromley  v.  Kelly,  39  L.  J.  Ch.  274.  •  Ibid. 

(o)  An  assent  to  an  investment     Investigating  as  to  its  safety.    In  re 
outside   the   proper   field   docs   not     Salmon,  42  Ch.  Div.  351. 
relieve  the  trustee  from  the  duty  of 

763 


§468. 


INTEREST. 


[chap.  XV. 


will  be  charged  with  interest  at  the  rate  of  four  per  cent :  but  if 
the  trustees  are  grossly  negligent  or  corrupt,  or  improperly  call 
in  the  money  from  a  proper  investment,  and  suffer  it  to  lie  idle, 
or  if  they  use  it  in  trade  or  speculation,  or  invest  it  in  improper 
places,  the  court  will  charge  them  with  interest  at  the  rate  of 
five  per  cent;  (a)  and,  in  certain  special  cases  of  misconduct, 
the  court  will  order  annual  or  semi-annual  rests,  for  the  pur- 
pose of  charging  them  with  compound  interest.  In  the  United 
States  there  is  no  law  by  which  different  rates  of  interest  can 
be  applied  to  different  degrees  of  negligence  or  misconduct;  and 
the  only  question  here  is,  whether  simple  or  compound  interest 
shall  be  imposed.  (6)    The  general  rules,  so  far  as  they  can  be 


(a)  In  re  Davis,  [1902]  2  Ch.  314; 
Vyse  V.  Foster,  8  Ch.  309,  335;  Ames' 
Cases  on  Trusts,  (2d  ed.)  496,  n., 
498,  n. 

(6)  Trustees  are  not  charged  with 
interest  on  uninvested  trust  funds  in 
their  hands,  where  the  funds  have 
not  earned  interest,  unless  they  have 
negligently  failed  to  invest  or  have 
used  the  funds  for  their  own  benefit, 
or  have  detained  the  funds  beyond 
the  time  when  they  ought  to  have 
turned  them  over  to  the  cestuis.  Grif- 
fith's Estate,  147  Pa.  St.  274;  Wil- 
liams V.  Haskins,  66  Vt.  378;  In  re 
Nesmith,  140  N.  Y.  609. 

The  best  considered  cases  base  a 
charge  of  interest  and  the  amount  of 
such  interest  upon  one  of  three  the- 
ories, according  to  the  circumstances 
of  the  case:  (1)  Making  up  to  the 
trust  estate  income  which  the  trust 
funds  ought  to  have  made  or  would 
probably  have  made,  if  they  had 
been  properly  invested  in  accordance 
with  the  trustee's  duty.  (2)  Giving 
to  the  trust  estate  all  the  income, 
profits,  or  benefits  which  the  trustee 
has  actually  received  from  his  use  of 
the  trust  funds.    (3)    Giving  to  the 

764 


trust  estate  the  same  rate  of  interest 
charged  against  a  person  who  de- 
tains or  borrows  money  of  another 
without  a  special  contract  as  to 
interest,  i.  e.,  simple  interest  at  the 
legal  rate.  Howard  v.  Manning,  65 
Ark.  122;  Forbes  v.  Ware,  172  Mass. 
306;  Bangor  v.  Beal,  85  Me.  129; 
General  Proprietors  v.  Force,  72  N. 
J.  Eq.  56.  See  1  Ames'  Cases  on 
Trusts  (2d  ed.),  482,  484,  496  and 
notes.  See  also  cases  cited  infra, 
this  note. 

Cases  where  the  trustee  has  sim- 
ply detained  in  his  hands  trust  funds 
which  he  ought  to  have  paid  over, 
but  has  not  used  them  for  his  profit, 
fall  within  the  first  or  the  third 
class,  whichever  is  most  advanta- 
geous to  the  cestui.  In  re  Estate  of 
Danforth,  66  Mo.  App.  586,  590; 
Weisel  v.  Cobb,  118  N.  C.  11.  Since 
trust  funds  when  properly  invested 
do  not  usually  yield  6  %  interest, 
compound  interest  at  6  %  or  a  higher 
rate  in  cases  of  this  class  would  usu- 
ally be  excessive  on  the  theory  of 
making  up  what  the  trust  funds 
ought  to  have  produced.  Forbes  v. 
Ware,  172  Mass.  306,  309.    Accord- 


CHAP.   XV. 


INTEREST. 


l§468. 


drawn  from  all  the  cases,  are  as  follows:  (1)  If  a  trustee  retains 
balances  in  his  hands  which  he  ought  to  have  invested,  or  delays 
for  an  unreasonable  time  to  invest,  or  if  he  mingles  the  money 


ingly  when  tlio  legal  rate  is  as  high 
aa  6  %  the  interest  charged  against 
a  trustee  in  such  cases  would  be 
simple  interest  at  the  legal  rate. 

Cases  where  the  trustee  has 
merely  failed  to  earn  an  income  for 
the  trust,  by  neglect  of  his  duty  to 
invest  or  by  making  improper  in- 
vestments, fall  within  the  first  class. 
He  must  make  good  any  loss  of  prin- 
cipal and  any  deficiency  of  income 
which  his  failure  of  duty  or  other 
breach  of  trust  has  caused .  Howard 
V.  Manning,  65  Ark.  122;  Dick's  Es- 
tate, 183  Pa.  St.  647;  In  re  Mailer, 
52  N.  Y.  S.  565,  (6  %  simple). 
When  he  has  improperly  changed 
from  an  authorized  investment  to 
one  which  was  unauthorized  he  may 
be  charged  not  only  with  loss  of 
principal  and  of  income  which  the 
fund  would  have  earned  but  with 
profits  which  would  have  come  to 
the  principal  of  the  fund  through  a 
subsequent  rise  in  \-alue  of  the  se- 
curities which  he  has  improperly 
sold.  /?(; Walker,  62  L.T. 449 ;  Re Mas- 
singberd's  Settlement,  60  L.  T.  620. 

Cases  where  the  trustee  has  used 
the  trust  fund  for  his  own  profit  or 
in  his  own  business  would  usually 
come  within  the  second  or  third 
class.  He  should  be  charged  at  least 
simple  interest  at  the  legal  rate,  and 
as  much  more  as  may  be  necessary 
to  take  from  him  all  the  income, 
profit,  or  other  pecuniary  benefits  he 
may  have  received  from  his  use  of 
the  funds.  Forbes  »-.  Ware,  172 
Mass.  306;  In  re  Thompson,  101 
Cal.  349;  Conn.  t-.  Howarth,  48  Conn. 
207;  Cook  v.  Lowry,  95  N.  Y.  103. 


The  charge  of  simple  interest  at 
the  legal  rate  in  such  a  case  is 
based  upon  the  reasoning  that  the 
most  lenient  view  of  such  a  trans- 
action is  to  regard  the  trustee  as 
a  borrower  of  the  trust  funds  with- 
out a  special  agreement  as  to  inter- 
est. Conn.  V.  Howarth,  48  Conn. 
207;  Stanley's  Estate  v.  Pence,  160 
Ind.  636;  Young's  Estate,  97  Iowa, 
218;  Bangor  v.  Beal,  85  Me.  129; 
White  V.  Ditson,  140  Mass.  351,  362; 
Wolfort  V.  Reilly,  133  Mo.  463; 
Society  v.  Pelham,  58  N.  H.  566; 
Erie  School  District  v.  Griffith,  203 
Pa.  St.  123;  Page's  Ex'r  v.  Holman, 
82  Ky.  573;  Re  Hodges'  Estate,  66 
Vt.  70;  Matter  of  Myers,  131  N.  Y. 
409;  Westover  v.  Carman's  Estate*, 
49  Neb.  397. 

The  better  opinion  is  that  com- 
pound interest  or  a  high  rate  of  in- 
terest should  not  be  imposed  upon  a 
trustee  as  a  penalty.  Forbes  v. 
Ware,  172  Mass.  306;  Forbes  v.  Al- 
len, 166  Mass.  569;  Kane  v.  Kane's 
Adm'r,  146  IVIo.  605;  Perrin  v.  Lep- 
per,  72  Mich.  454,  556;  Hazard  v. 
Durant,  14  R.  I.  25;  General  Propri- 
etors V.  Force,  72  N.  J.  Eq.  56; 
Lehman  v.  Rotlibarth,  159  HI.  270; 
Hughes  I'.  People,  111  111.  457.  See 
Vyse  V.  Foster,  8  Ch.  309,  335.  But 
see  Eastman  i-.  Davis,  68  Vt.  225; 
Page's  Ex'r  t'.  Holman,  82  Ky. 
573. 

As  to  the  habihty  of  trustees  to 
turn  in  to  the  trust  all  benefits  or 
profits  from  use  of  trust  property, 
see  supra,  §  429  and  note. 


765 


§  468.]  INTEREST.  [chap.  XV. 

with  his  own,  or  uses  it  in  his  private  business/  or  deposits  it  in 
bank  in  his  own  name,  or  in  the  name  of  the  firm  of  which  he 
was  a  member,  or  neglects  to  settle  his  account  for  a  long  time, 
or  to  distribute  or  pay  over  the  money  when  he  ought  to  do  so,' 
he  will  be  liable  to  pay  simple  interest  at  the  rate  established 
by  law  as  the  legal  rate  in  the  absence  of  special  agreements.' 

1  Cool  V.  Jackman,  13  Brad.  (111.)  560;  Lehmann  v.  Rothbarth,  111  111. 
185;  Society  v.  Pelham,  58  N.  H.  566;  the  trustee  must  pay  interest  from 
the  time  of  diverting  the  fund. 

2  Judd  V.  Dike,  30  Minn.  385;  Pickering  v.  De  Rochemont,  60  N.  H. 
179;  Lyons  t;.  Chamberlin,  25  Hun,  49.   [  Mades  v.  Miller,  2  App.  D.  C.  455.] 

3  Burdick  v.  Garrick,  L.  R.  5  Ch.  241;  Blogg  v.  Johnson,  L.  R.  2  Ch. 
225;  Berwick  v.  Murray,  7  De  G.,  M.  &  G.  843;  Treves  v.  Townshend,  1 
Bro.  Ch.  384;  Forbes  v.  Ross,  2  Bro.  Ch.  430;  Piety  v.  Stace,  4  Ves.  620; 
Ashburnham  v.  Thompson,  13  Ves.  402;  Bates  v.  Scales,  12  Ves.  402;  Po- 
cock  V.  Reddington,  5  Ves.  794;  Sutton  7).  Sharp.  1  R,U8S.  146;  Crackelt 
V.  Bethune,  1  J.  &  W.  122;  Att.  Gen.  v.  Solly,  2  Sim.  515;  Heathcote  v. 
Hulme,  1  J.  &  W.  122;  Brown  v.  Sansome,  1  McC.  &  Y.  327;  Westover 
V.  Chapman,  1  Coll.  177;  Robinson  v.  Robinson,  1  De  G.,  M.  &  G.  247; 
Jones  V.  Foxall,  15  Beav.  392;  Saltmarsh  v.  Barrett,  21  Beav.  349;  Knott 
V.  Cottee,  16  Beav.  77;  Rocke  v.  Hart,  11  Ves.  58;  Lincoln  v.  Allen,  4  Bro. 
P.  C.  553;  Younge  v.  Combe,  4  Ves.  101;  Dawson  v.  Massey,  1  Ball  &  B. 
231;  Hicks  v.  Hicks,  3  Atk.  274;  Perkins  v.  Boynton,  1  Bro.  Ch.  375;  Eng 
V.  Talbott,  40  N.  Y.  86;  Nelson  v.  Hagerstown  Bank,  27  Md.  53;  Cook 
V.  Addison,  L.  R.  5  Ch.  466;  Duffy  v.  Duncan,  35  N.  Y.  187;  Young  v. 
Brush,  38  Barb.  294;  Owen  v.  Peebles,  42  Ala.  338;  Wistar's  App.,  54  Pa. 
St.  60;  Newton  v.  Bennett,  1  Bro.  Ch.  359;  Littlehales  v.  Gascoigne,  3  Bro. 
Ch.  73;  Franklin  i'.  Firth,  id.  433;  Longmore  v.  Broom,  7  Ves.  124;  Trim- 
leston  V.  Hammil,  1  Ball  &  B.  385;  Tebbs  v.  Carpenter,  1  Madd.  290; 
Mousley  v.  Carr,  4  Beav.  49;  Hoskins  v.  Nichols,  1  N.  C.  C.  478;  Beverleys 
V.  Miller,  6  Munf.  99;  Diffenderffer  v.  Winder,  3  G.  &  J.  341;  Mumford  v. 
Murray,  6  Johns.  Ch.  1;  Jacot  v.  Emmett,  11  Paige,  142;  Kellett  v.  Rath- 
bun,  4  Paige,  102;  De  Peyster  v.  Clarkson,  2  Wend.  77;  Garniss  v.  Gardner, 
1  Edw.  Ch.  128;  Spear  v.  Tinkham,  2  Barb.  Ch.  2li;  Manning  v.  Manning, 
1  Jolins.  Ch.  527;  Brown  v.  Rickett,  4  id.  303;  Williamson  v.  Williamson,  6 
Paige,  298;  Dunscomb  v.  Dunscomb,  1  Johns.  Ch.  508;  Minuse  v.  Co.x, 
5  Johns.  Ch.  448;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231;  Gray  v.  Thomp- 
son, 1  Johns.  Ch.  82;  Armstrong?'.  Milkr,  6 Ohio,  118;  Astor's Est.,  5  Whar. 
228;  Merrick's  Est.,  2  Ash.  285;  Worrall's  App.,  23  Penn.  St.  44;  Graves's 
App.,  50  id.  189;  Hess's  Est.,  69  id.  454;  Peyton  v.  Smith,  2  Dev.  &  B.  Eq. 
325;  Jameson  v.  Shelly,  2  Humph.  198;  Dyott's  Est.,  2  Watts  &  S.  655;  hi  re 
Thorp,  Davies,  290;  Carr  v.  Laird,  27  Mi.ss.  544;  Lomax  v.  Pendleton,  3  Call, 
538;  Handy  v.  Snodgrass,  9  Leigh,  484;  Dillard  v.  Tomlinson,  1  Munf. 
183;  Carter  v.  Cutting,  5  Ivlunf.  223;  Wood  v.  Gamett,  6  Leigh,  271;  Miller 

766 


CILAP.  XV.]  INTEREST,  [§  4G8. 

This  rule  is  subject  to  the  qualification  that  trustees  cannot 
make  any  advantage  to  themselves  out  of  the  trust  fund ;  and  if 
they  make  more  than  legal  interest,  they  shall  pay  more,  as,  if 
they  make  usurious  loans,  they  shall  be  charged  with  all  their 
gains  from  the  use  of  the  money. •  If  the  trustee  cannot  show 
what  amount  of  interest  he  has  received,  he  shall  be  charged 
with  legal  interest  from  the  time  when  the  regular  investment 
ought  to  have  been  made.^  There  may  be  an  exception  to  the 
rule,  that  a  deposit  of  the  trust-money  in  bank  in  the  name  of 
the  trustee,  or  a  mixing  of  the  trust  fund  with  his  own,  will 
impose  a  liability  of  legal  interest.  There  must  be  some  element 
of  a  breach  of  trust  in  the  transaction,  or  a  breach  of  duty.^  If 
therefore  the  sums  are  small,  and  the  trustee  receives  no  credit 
or  profit  from  the  act,  or  if  the  act  was  accidental,  or  beneficial 
to  the  cestui  que  trust,  legal  interest  will  not  be  imposed  upon 
the  trustee;  ^  or  if  the  trustee  was  a  member  of  a  firm  of  bankers, 
and  he  deposited  with  the  firm  in  his  name  as  trustee,  he  will 
not  be  charged  with  interest,  although  the  firm  made  a  profit  from 
the  deposit.^  The  proper  mode  of  taking  the  account  of  trustees 
is  to  treat  all  the  income  of  the  trust  received  during  the  current 
year  as  unproductive,  and  to  charge  against  the  income  of  the 
current  year  all  the  disbursements,  including  the  compensation 

V.  Beverleys,  4  Hem.  &  W.  415;  Chase  v.  Lockerman,  11  G.  &  J.  1S5;  Ring- 
gold V.  Ringgold,  1  H.  &  G.  11;  Arthur  v.  Marster,  1  Harp.  Eq.  47;  Row- 
land V.  Best,  2  McCord,  Ch.  317;  Lyles  v.  Hattan,  6  G.  &  J.  122;  Griswold 
V.  Chandler,  5  N.  H.  497;  Lund  v.  Lund,  41  N.  H.  355;  Turney  v.  \Villiani8. 
7  Yerg.  172;  Williams  v.  Powell,  16  Jur.  393;  Dornford  v.  Dornford,  12 
Ves.  127;  Wright  v.  Wright,  2  McCord,  Ch.  185;  Knowlton  i-.  Bradly,  17 
N.  H.  458;  McKim  t-.  Hibbard,  142  Mass.  422.  [  White  t;.  Ditson,  140 
Mass.  351;  Forbes  v.  Ware,  172  Mass.  306;  Re  Hodges'  Estate,  66  Vt.  70; 
Matter  of  Myers,  131  N.  Y.  409;  In  re  Estate  of  Danforth,  66  Mo.  App. 
586,  590.] 

'  Barney  t-.  Saunders,  16  How.  543;  Oswald's  App.,  3  Grant,  300;  Mar- 
tin V.  Raybom,  42  Ala.  468. 

2  Bentlcy  v.  Shreve,  2  Md.  Ch.  219;  Rapalje  v.  Hall,  1  Sandf.  Ch.  339. 

'  McKnight  v.  Walsh,  23  N.  J.  Eq.  136;  24  N.  J.  Eq.  492. 

*  Rapalje  v.  Hall,  1  Sandf.  Ch.  399;  Graves's  App.,  50  Penn.  St.  189; 
Bond  V.  Abbott,  42  Ala.  499. 

6  Hess's  Est.,  69  Penn.  St.  454.    [  Dick's  Estate,  183  Pa.  St.  647.] 

767 


§  469.]  INTEREST.  [chap.  XV- 

or  commissions  of  the  trustees  for  the  same  year,  and  to  strike 
a  balance,  upon  which,  as  a  general  rule,  interest  is  to  be  al- 
lowed,^ but  in  such  a  way  as  not  to  compound  it.^  If,  however, 
these  balances  are  too  small  to  invest,  or  for  any  reason  the 
trustees  might  equitably  keep  them  on  hand,  interest  will  not 
be  allowed  upon  them  until  the  balances  so  accumulate  as  to 
be  properly  invested,  or  until  the  trustees  ought  to  invest  them.' 
Of  course,  as  soon  as  a  trustee  properly  pays  the  fund  into 
court,  his  liability  for  interest  ceases.^  But  so  long  as  any  liti- 
gation is  pending  over  the  fund,  and  the  money  is  not  brought 
into  court,  the  trustee  is  bound  to  keep  it  invested,  and  he  is 
liable  for  legal  interest.^  But  a  guardian  is  not  liable  to  interest 
while  the  settlement  of  his  account  is  pending.® 

§  469.  (2)  If  a  trustee  is  directed  and  bound  to  invest  in  a 
particular  stock  or  fund  within  a  certain  time,  or  within  a  rea- 
sonable time,  and  he  neglects  to  make  the  investment  as  di- 
rected, the  cestui  que  trust  has  his  election  to  take  the  money  and 

^  Boynton  v.  Dyer,  18  Pick.  1;  Pettus  v.  Clawson,  4  Rich.  Eq.  92;  Jones 
V.  Morrall,  2  Sim.  (n.  s.)  241;  Clarkson  v.  De  Peyster,  2  Wend.  78;  Vander- 
heyden  v.  Vanderheyden,  2  Paige,  288;  Luken's  App.,  47  Pa.  St.  356; 
Reynolds  v.  Waker,  29  Miss.  250;  Roach  v.  Jelks,  40  Miss.  754;  Crump  v. 
Gerack,  id.  765. 

*  Rowland  v.  Best,  2  McCord,  Ch.  317;  Jordon  v.  Hmit,  2  Hill,  Eq.  145; 
Walker  v.  Bynum,  4  Des.  555;  Powell  v.  Powell,  10  Ala.  900;  Shephard 
V.  Stark,  3  Munf.  29  ;  Burwell  v.  Anderson,  3  Leigh,  348  ;  Garrett 
V.  Carr,  3  id.  407;  Campbell  v.  Williams,  3  Mon.  122;  Jones  v.  Ward,  10 
Yerg.  160.    See  Eliott  v.  Sparrell,  114  Mass.  404. 

5  Rapalje  v.  Hall,  1  Sandf.  Ch.  399;  Woods  v.  Garnett,  6  Leigh,  271; 
Graves's  App.,  50  Penn.  St.  189;  Luken's  App.,  47  id.  356.  Trustee  is  gener- 
ally chargeable  with  interest  to  be  computed  from  the  first  day  of  January 
following  his  receipt  of  the  funds.    Livingston  v.  Wells,  8  S.  C.  347. 

*  January  v.  Poyntz,  2  B.  Mon.  404;  Yundt's  App.,  13  Penn.  St.  575; 
Lane's  App.,  24  id.  487;  Younge  v.  Brush,  38  Barb.  294;  Brandon  v.  Hoggatt, 
32  Miss.  335. 

*  Ibid.     [  But  see  Dorris  v.  Miller,  105  Iowa,  564.] 

«  Yader's  App.,  45  Penn.  St.  394.  But  a  trustee  who  retained  funds  in  his 
hands,  making  a  claim  to  them  as  his  compensation,  which  he  failed  to 
establish,  was  charged  with  interest  from  the  time  he  ought  to  have  paid 
them.    Jenkins  v.  Doolittle,  69  111.  415. 

768 


CHAP.  XV.]  INTEREST.  [§  470. 

legal  interest  thereon,  or  so  much  stock  as  the  moneN'  would 
have  purchased  at  the  time  when  the  investment  ought  to  have 
been  made,  and  the  dividends  thereon.  It  has  been  held  in 
some  cases,  that  if  trustees  were  directed  to  invest  in  stocks,  or 
in  real  estate,  and  they  neglected  to  do  either,  the  cestui  que 
trust  might  have  the  amount  of  stocks  that  could  have  been 
purchased,  and  the  dividends  thereon.-  On  the  other  hand,  it 
has  been  held,  and  is  now  established  in  such  case,  that,  as  the 
trustees  might  have  invested  in  real  securities,  and  such  real 
securitiestmight  have  been  of  less  value  than  the  original  fund, 
the  cestui  que  trust  can  have  only  the  money  and  legal  interest 
thereon,  and  cannot  claim  the  amount  of  stocks  that  might  have 
been  purchased.^  If  trustees  are  directed  to  invest  a  certain 
fund  separately,  they  will  be  liable  for  losses  occurring  by 
reason  of  neglecting  this  provision.^  In  Wisconsin,  it  has  been 
held  that  if  a  trustee  is  directed  to  invest  in  United  States  bonds 
or  in  real  estate  security,  the  interest  which  he  might  have 
obtained  upon  proper  real  estate  security  is  the  measure  of  his 
liabihty  for  failure  to  invest  the  fund.^ 

§  470.  (3)  If  the  trust  fund  was  properly  invested,  according 
to  the  direction  of  the  trust  Instrument,  or  according  to  law, 
and  the  trustee  improperly  converts  the  fund  into  money  and 
neglects  to  invest  it,  or  invests  it  improperly,  or  uses  it  in  trade, 
business,  or  speculation,  the  cestui  que  trust  may,  at  his  electoni, 
take  the  diivdends  or  interest  which  the  fund  would  have  pro- 
duced if  the  investment  had  been  suffered  to  remain  where  it 

'  Shepherd  v.  Mauls,  4  Hare,  504;  Robinson  v.  Robinson,  1  De  G.,  M. 
&  G.  256;  Byrchall  v.  Bradford,  6  Madd.  235;  Vyse  v.  Foster,  S  Ch.  334; 
Ihmscn's  App.,  43  Penn.  St.  471;  Blauvelt  i-.  Ackerman,  20  N.  J.  Eq.  141; 
DarUng  t'.  Hammer,  id.  220;  McElhenny's  App.,  46  Penn.  St.  347. 

*  Hockley  v.  Bantock,  1  Russ.  141;  Watts  v.  Girdlestone,  6  Beav.  1S8; 
Ames  V.  Parkinson,  7  Beav.  379;  Ouseley  v.  Anstruther,  10  Beav.  456. 

'  Marsh  v.  Hunter,  6  Madd.  295;  Shepherd  i-.  Mauls,  4  Hare,  500; 
Robinson  v.  Robinson,  1  De  G.,  M.  &  G.  256;  Phillipson  t'.  Gatty,  7  Hare, 
516;  Rees  v.  Williams,  1  De  G.  &  Sm.  314. 

*  Wilmerding  i^.  McKesson,  103  N.  Y.  329. 
«  Andrew  v.  Schmitt,  64  Wis.  664. 

VOL.  L  —  49  759 


§  471.]  COMPOUND   INTEREST.  [CHAP.  XV. 

was  properly  made;  or  he  may  take  legal  interest  on  the  fund;  or 
he  may  take  all  the  profits  that  have  been  made  upon  the  fund.^ 
If  the  cestui  que  tru^t  elects  to  take  the  profits,  he  must  take 
them  during  the  whole  period,  subject  to  all  the  losses  of  the 
business:  he  cannot  take  profits  for  one  period  and  interest 
for  another.^ 

§  471.  (4)  If  the  trustee  improperly  changes  an  investment, 
and  refuses  to  reinvest  the  money  in  a  legal  manner;  or  if  he 
refuses  to  invest  the  fund  in  the  first  instance;  or  if  he  uses  the 
fund  in  trade,  business,  or  speculation ;  or  makes  an  improper  or 
illegal  investment,  —  the  cestui  que  trust  may  have  the  income 
that  would  have  accrued  from  the  proper  investment;  or  he 
may  have  simple  interest  at  the  legal  rate; '  or  he  may  take  all 
the  profits  of  the  trade  or  business,  or  other  investment  or 
employment  of  the  money,  and  if  the  trustee  refuse  to  account 
for  the  profits  arising  from  his  use  of  the  money,  or  if  he  has  so 
mingled  the  money  and  the  profits  with  his  own  money  and 
profits  that  he  cannot  separate  and  account  for  the  profits  that 
belong  to  the  cestui  que  trust,  the  cestui  que  trust  may  have  legal 
interest  computed  with  annual  rests,  in  order  to  compound  it.^  (a) 
And  sometimes  even  biennial  rests  will  be  allowed  in  computing 

1  Jones  V.  Foxall,  15  Beav.  392;  Robinett's  App.,  36  Penn.  St.  174; 
Saltmarsh  v.  Barrett,  31  Beav.  349;  Kyle  v.  Bamett,  17  Ala.  306;  Bamey 
V.  Saunders,  16  How.  543;  Brown  v.  De  Tastet,  Jac.  284;  Cook  v.  CoUing- 
ridge,  id.  607;  Crawshay  v.  CoUins,  15  Ves.  218;  2  Russ.  325;  Feather- 
stonhaugh  v.  Fen  wick,  17  Ves.  298;  Docker  v.  Somes,  2  Myl.  &  K.  655; 
Wedderburn  v.  Wedderbum,  2  Keen,  722;  4  Myl.  &  Cr.  41;  Norris's  App., 
71  Penn.  St.  125.     [  See  supra,  §  429,  note.] 

2  Heathcote  v.  Hulme,  IJ.  &  W.  122. 

^  Cogbill  V.  Boyd,  79  Va.  1,  and  cases  in  next  note;  Seguin's  App., 
103  Penn.  St.  139. 

*  Jones  V.  Foxall,  15  Beav.  392;  Raphael  v.  Boehm,  11  Ves.  92;  13  Ves. 
407;  1  Madd.  167;  Saltmarsh  v.  Barrett,  31  Beav.  349;  Walker  v.  Wood- 
ward, 1  Russ.  107;  Heighington  v.  Grant,  5  Myl.  &  Cr.  258;  2  PhiU.  600; 
Williams  v.  Powell,  15  Beav.  461;  Walrond  v.  Wabond,  29  Beav.  586; 
Stackpole  v.  Stackpole,  4  Dow.  P.  C.  209;  Eliott  v.  Sparrell,  114  Mass. 
404;  State  v.  Howarth,  48  Conn.  207;  Cook  v.  Lowry,  95  N.  Y.  103. 

(a)  See  supra,  §  468,  note. 

770 


CHAP.  XV.  j  COMPOUND    INTEREST.  [§  471. 

the  compound  interest  where  the  trustee  has  used  the  fund  in 
his  own  business,'  There  has  been  considerable  conflict  of 
opinion  and  authority  upon  the  matter  of  compounding  interest 
against  a  trustee.  Lord  Cran worth  said,  that  a  trustee  might 
as  well  be  charged  with  more  principal  than  he  had  received  as 
to  be  charged  with  more  interest."  In  another  case,  it  was  said 
in  England  that  a  trustee  would  be  charged  with  more  than 
four  per  cent  interest:'  (1)  when  he  ought  to  have  received 
more;  (2)  when  he  did  receive  more;  (3)  when  he  is  presumed 
to  receive  more;  and  (4)  when  he  is  estopped  to  say  he  did 
not  receive  more."*  Compound  interest  was  allowed  in  one  case 
where  the  trustee  held  the  fund  after  the  minor  cestui  came  of 
age  without  making  any  arrangement  with  the  child  or  explain- 
ing to  him  his  rights.^  The  burden  is  on  the  trustee  to  show 
that  he  made  no  profits,  or  received  no  benefit  from  the  money;  * 
and  if  he  refuses  to  account  or  to  show  the  amount  of  profits 
received,  the  court  will  give  compound  interest,  in  order  that  it 
may  be  certain  that  the  cestui  que  trust  gets  the  profits  of  the 
trade  or  business  in  which  the  trustee  has  employed  the  money. ^ 

>  Page's  Ex'r  v.  Holman,  82  Ky.  573. 

*  Att.  Gen.  v.  Alford,  4  De  G.,  M.  &  G.  851. 

'  Penney  v.  Avdson,  3  Jur.  (n.  s.)  62. 

<  Att.  Gen.  v.  Alford,  4  De  G.,  M.  &  G.  851;  Norris's  App.,  71  Penn. 
St.  106.     [  Forbes  v.  Ware,  172  Mass.  306.] 

'  Emmet  v.  Emmet,  17  Ch.  D.  142. 

8  Knott  V.  Cottee,  16  Beav.  77;  16  Jur.  752;  Swindall  v.  Swindall,  8 
Ired.  Eq.  286;  Ringgold  v.  Ringgold,  1  H.  &  G.  11;  Diffenderffer  v.  Winder, 
3  G.  &  J.  311;  Schieffelin  v.  Stewart,  1  Johns.  Ch.  620;  Bryant  v.  Craige, 
12  Ala.  354;  Hodge  t'.  Hawkins,  1  Dev.  &  B.  Eq.  566;  Hugh  v.  Smith, 
2  Dana,  253;  Karr  v.  Karr,  6  Dana,  3;  Smith  v.  Kcnnard,  38  Ala.  695; 
McElhenny's  App.,  61  Penn.  St.  188.  Annual  rests  were  allowed  in  Har- 
land's  Acct.,  5  Rawle,  329;  Livingston  v.  Wells,  8  S.  C.  347;  the  question 
was  left  open  in  Dietterich  v.  Heft,  3  Penn.  St.  91;  McCall's  Est.,  1  Ash. 
357;  Pennypacker's  App.,  41  Penn.  St.  44,  and  rests  were  wholly  rejected 
in  Graves's  App.,  50  Penn.  St.  189. 

^  Knott  V.  Cott«e,  16  Beav.  77;  16  Jur.  752;  Swindall  v.  Swindall,  8  Ired. 
Eq.  286;  Ringgold  v.  Ringgold,  1  H.  &  G.  11;  Diffenderffer  r.  Winder,  3  G. 
«fe  J.  311;  Schieffelin  t'.  Stewart,  1  Johns.  Ch.  620;  Bryant  v.  Craige,  12  Ala. 
3.54;  Hodge  v.  Hawldns,  1  Dev.  &  B.  Eq.  566;  Hugh  v.  Smith,  2  Dana,  253; 
Karr  v.  Karr,  6  Dana,  3;  Smith  v.  Kennard,  38  Ala.  695;  McElhenny's 
App.,  61  Penn.  St.  188.    Annual  rests  were  allowed  in  Harland's  Acct.,  5 

771 


§  471.]  COMPOUND    INTEREST.  [CHAP.  XV. 

To  justify  the  compounding  of  interest,  there  must  be  a  wilful 
breach  of  duty/  and  not  simple  neglect;  there  must  be  some 
special  and  peculiar  circumstances,^  Compound  interest  will 
not  be  given  against  negligent  trustees  where  the  facts  do  not 
indicate  a  withdrawal  of  the  funds  from  their  legitimate  chan- 
nels of  accumulation,  or  a  realization  by  the  trustees  of  profits 
on  the  assets.^  If  the  money  is  simply  used  in  business,  and  it 
appears  that  the  profits  were  not  equal  to  the  interest,  annual 
rests  will  not  be  made.'*  It  appears  now^  to  be  the  settled  doc- 
trine, that  compound  interest  w^ill  not  be  given  as  a  penalty  for 
a  breach  of  trust,  nor  will  it  be  given  for  an  employment  of  the 
money  in  the  course  of  trade,  if  the  profits  made  in  the  trade 
can  be  clearly  ascertained,  and  are  less  than  legal  interest,  or 
less  than  five  per  cent;  but  if  nothing  appears  as  to  the  profits, 
the  courts  will  presume  that  the  ordinary  profits  of  trade  are 
made,  or  five  per  cent  in  England  and  the  legal  interest  in  the 
United  States.  And  if  the  interests  or  profits  of  the  fund  are 
retained  in  the  trade,  instead  of  being  paid  out,  it  will  be  pre- 
sumed that  the  trustees  made  a  similar  rate  of  interest  or  profit 
upon  the  sum  retained  in  trade,  and  therefore  annual  rests  will 
be  made,  and  compound  interest  given;  not  as  punishment  or 

Rawle,  329;  Livingston  v.  Wells,  8  S.  C.  347;  the  question  was  left  open, 
Dietterich  v.  Heft,  3  Barr,  91;  McCall's  Est.,  1  Ash.  357;  Pennypacker's 
App.,  41  Penn.  St.  44,  and  rests  were  wholly  rejected  in  Graves's  App., 
50  Penn.  St.  189.  [  See  Forbes  v.  Ware,  172  Mass.  306;  Lehman  v.  Roth- 
barth,  159  111.  270;  Hughes  v.  The  People,  HI  lU.  457;  Forbes  v.  Allen,  166 
Mass.  569;  Perrin  v.  Lepper,  72  Mich.  454,  551;  Kane  v.  Kane's  Adm'r, 
146  Mo.  605;  In  re  Ricker's  Estate,  14  Mont.  153,  29  L.  R.  A.  622,  note; 
Cook  V.  Lowry,  95  N.  Y.  103;  Hazard  v.  Durant,  14  R.  I.  25.  In  re  Davis, 
[  1902  ]  2  Ch.  314.] 

1  Hughes  V.  People,  111  111.  457;  Wilmerding  v.  McKesson,  103  N.  Y. 
329. 

*  Gamiss  v.  Gardner,  1  Edw.  Ch.  128;  Ackerman  v.  Emott,  4  Barb.  626; 
Tebbs  V.  Carpenter,  1  Madd.  290;  Fay  v.  Howe,  1  Pick.  528  and  n.;  Clem- 
ens V.  Caldwell,  7  B.  Mon.  171;  Fall  v.  Simmons,  6  Ga.  272;  Kennan  v. 
HaU,  8  Ga.  417;  Cartledg  v.  CutUff,  21  Ga.  1. 

»  Ames  V.  Scudder,  83  Mo.  189. 

*  Utica  Ins.  Co.  v.  Lynch,  11  Paige,  521;  Kyle  v.  Barnett,  17  Ala.  306; 
Ringgold  V.  Ringgold,  1  H.  &  G.  11;  Myers  v.  Myers,  2  McCord,  Ch.  214; 
Wright  V.  Wright,  id.  185;  Johnson  v.  Miller,  33  Miss.  553. 

772 


CHAP.  XV. J  COMPOUND    INTEREST.  [§  472. 

penalty,  but  because  the  fund  and  the  income  employed  in 
trade  are  presumed  to  produce  that  amount  of  income,  interest, 
or  profit.'  The  trustee  must  seek  out  the  cestui  que  trust  to  pay 
the  income  to  him,  or  he  must  pay  interest  upon  it.  So,  where 
a  trustee  receives  property  and  sells  it,  he  must  account  for  the 
proceeds.  And  if  he  refuses,  he  will  be  charged  with  the  highest 
value  that  can  be  sustained  by  the  evidence.^  But  a  mere  pay- 
ment into  bank  to  the  general  account  of  the  trustee  is  not  such 
an  employment  of  the  money  as  to  justify  compound  interest.' 
A  trustee  is  accountable  for  all  interest  and  profits  actvxilly 
received  by  him  from  the  trust  fund,  and  for  all  which  he  viight 
have  obtained  by  due  diligence  and  reasonable  skill.* 

§  472.  If  a  trustee  is  directed  to  make  a  certain  investment, 
and  to  accumulate  the  income,  and  he  neglects  or  refuses  so 
to  do,  the  cestui  que  trust  is  entitled  to  compound  interest,  upon 
all  the  authorities.  If,  by  the  instrument  of  trust,  interest  is  to 
be  added  to  principal  semi-annually,  semi-annual  rests  will  be 
made;  otherwise  annual  rests  will  be  made,^  or  an  inquiry  will 
be  directed  to  ascertain  what  would  have  been  the  amount  of  the 
accumulation  if  the  directions  had  been  followed,  in  order  to 

1  Jones  V.  Foxall,  15  Beav.  3S8;  Burdick  v.  Garrick,  L.  R.  5  Ch.  233. 
See  the  matter  of  compound  interest  elaborately  discussed  by  Mr.  Justice 
Scarburgh  in  Ker  v.  Snead,  11  Law  Rep.  217,  Boston,  Sept.  1848;  and 
Wright  V.  Wright,  2  McCord,  Eq.  200-204;  McKnight  v.  Walsh,  23  N.  J. 
Eq.  136;  24  id.  498;  Lothrop  v.  Smalley,  23  id.  192.  [  See  supra,  §  429, 
note  b.] 

2  McKnight  v.  Walsh,  23  N.  J.  Eq.  136;  Burdick  v.  Garrick,  L.  R.  5 
Ch.  233. 

^  Norton's  Estate,  7  Phila.  484. 

*  Cruce  V.  Cruce,  81  Mo.  676. 

'  Raphael  v.  Boehm,  11  Ves.  92;  13  Ves.  407,  590;  Domford  v.  Domford, 
12  Ves.  127;  Knott  v.  Cottce,  16  Boav.  77;  Pride  v.  Fooks,  2  Beav.  430; 
Byrne  v.  Norcott,  13  Beav.  336;  Stackpole  v.  Stackpolc,  4  Dow.  P.  C.  209; 
Brown  v.  Southouse,  3  Bro.  Ch.  107;  Karr  i'.  Karr,  6  Dana,  3;  Bowles 
V.  Drayton,  1  Des.  489;  Hodge  v.  Hawkins,  1  Dev.  &  Bat.  564;  Wilson  v. 
Peake,  3  Jur.  (n.  s.)  155;  Brown  v.  Sansome,  1  McCIe.  &  Yo.  427;  Lesley  v. 
Lesley,  1  Dev.  117;  Fitham  v.  Turner,  23  L.  T.  (n.  s.)  345;  Court  v.  Robarts, 
6  01.  &  Fin.  64;  Townsend  v.  Townsend,  1  Gif.  201. 

773 


§  472.]  COMPOUND   INTEREST.  [CHAP.  XV. 

charge  the  trustee  with  the  amount.*  And  where  a  trustee  was 
ordered  by  the  court  to  invest  a  sum  in  controversy,  and  he  neg- 
lected to  do  so,  he  was  ordered  to  bring  the  whole  sum  into 
court  with  compound  interest.^  Interest  may  be  allowed  against 
a  trustee,  although  the  bill  does  not  pray  for  it.'  If  a  trustee 
improperly  withholds  money  as  a  commission,  he  may  be  made 
to  pay  compound  interest  on  it.* 

1  Brown  v.  Sansome,  1  McCle.  &  Yo.  427. 

*  Latimer  v.  Hansom,  1  Bland,  51;  Winder  v.  Diffenderflfer,  2  Bland,  166; 
McKnight  v.  Walsh,  23  N.  J.  Eq.  136;  24  id.  498;  Lathrop  v.  Smalley,  23  id. 
192. 

3  Blogg  V.  Johnson,  L.  R.  2  Ch.  225. 

*  McKnight  v.  Walsh,  23  N.  J.  Eq.  136. 


END   OF  VOL.    I. 


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